Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof. (b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 3 contracts
Samples: Lease Agreement, Lease (Ameresco, Inc.), Lease
Option to Extend. (a) Subject to the terms hereof13.1 Provided that Tenant is not then in default hereunder beyond applicable cure periods, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord)any, Tenant shall have the right option (the "Extension Option") to extend the Term of this Lease for one extended term (the "Extended Term") an additional period of five (5) yearsyears commencing on August 1, 2011 and expiring on July 31, 2016 (the "Extension Term"). The Extended Term shall commence on July Extension Option may be exercised by Tenant delivering to Landlord written notice thereof (the "Tenant Extension Notice") not earlier than February 1, 2025, 2010 and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30July 31, 20242010. The giving Extension Term shall be upon all of the same terms, covenants and conditions of this Lease as are in effect upon Tenant's exercise of such notice by Tenant Extension Option, except (i) as to Annual Fixed Rent, which shall automatically and irrevocably extend the Term of the Lease for the Extended Termbe determined as set forth below, and no instrument of renewal need be executed. In the event (ii) that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option extension rights unless otherwise agreed to extend in writing by Landlord. Notwithstanding any provision herein to the Term contrary, the Extension Option shall be null and void upon the occurrence of any of the following events: (i) Tenant's failure to exercise the Extension Option within the aforementioned time period in accordance with the provisions set forth herein, or (ii) Tenant assigning its interest in this Lease, it being agreed that or (iii) Tenant at the time shall be of such exercise having subleases in effect which total more than 25% of the essence square footage in the giving Building.
13.2 If Tenant exercises the Extension Option as provided in Section 13.1 above, then the annual fixed rental (Rent), as described in Section 2.1 of such notice. The Extended Term shall be on all the terms this Lease and conditions of in Exhibit 1 to this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Extension Term shall be the greater of (i) $2,875,037 or (ii) the Fair Market Rental Value of Rent. As used herein, the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental ValueRent" shall mean means the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises Annual Fixed Rent as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If determined: (i) by agreement between Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination DateTenant, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Valuenegotiating in good faith, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within no later than thirty (30) days after having been appointed, choose one Tenant's timely exercise of the determinations set forth in either Landlord’s Extension Option, or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon (ii) if Landlord and Tenant. Each party Tenant shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing not have agreed upon the Fair Market Rental Value. The arbitrator Rent by said date as aforesaid (an "Impasse"), then Fair Market Rent for the Extension Term shall not have the power to add to, modify, or change any be fixed by means of the provisions of this Leasean Appraisers' Determination as defined below.
Appears in 3 contracts
Samples: Lease Amendment (Brooks Automation Inc), Lease Amendment (Brooks Automation Inc), Lease Amendment (Pri Automation Inc)
Option to Extend. (a) Subject Provided that at the time of exercise and at all times prior to the commencement of the subject Extended Term, Tenant shall not be in default under this Lease or otherwise failed to have timely performed all of Tenant’s obligations under this Lease, the Term of this Lease shall be subject to two (2) extension options for an additional period of 60 months each (individually, the “Extension Option”, and collectively, the “Extension Options”). The first Extension Option shall commence as of the expiration of the Initial Term and expire on the date that is 60 full calendar months thereafter (the “First Extended Term”), and the second Extension Option shall commence as of the expiration of the First Extended Term and expire on the date that is 60 full calendar months thereafter (the “Second Extended Term”, and individually with the First Extended Term, an “Extended Term”). The Extension Options shall be exercisable as follows:
(1) The Extension Option shall be upon the same material terms hereofand conditions contained in this Lease, if except that (i) during the Term initial Monthly Base Rent for the Premises shall be equal to the Fair Market Rent (as defined in Section 2.2(d)(2) below) for the Premises as of the Lease there exists no Default first month of Tenant hereunder (or any event or circumstance which, with the giving of notice or subject Extension Option determined in the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), manner set forth in Section 2.2(d)(3) below and (ii) Tenant shall not have assigned accept the Lease Premises in an “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or sublet all or any portion alter the Premises (subject, however, to the terms of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term Section 8.1 of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof).
(b2) The Annual Basic Rent for Tenant’s election to exercise an Extension Option must be given to Landlord in writing no less than eight (8) months prior to (i) the expiration of the initial Term (as to the first year Extension Option), or (ii) the expiration of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the First Extended Term (as to the "Determination Date"second Extension Option) (the “Extension Notice”). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease Within thirty (30) days of Landlord’s receipt of the Premises as Extension Notice, Landlord shall send Tenant written notice of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the TenantLandlord’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental ValueRent for the Premises (the “Fair Market Rent Notice”). That there For purposes of this Section, the term “Fair Market Rent” shall be only one arbitratormean the base rental rate, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office periodic rental market. The arbitrator shall conduct such hearings rate adjustment and investigations as the arbitrator shall deem appropriate other charges and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expensesincreases, if any, for space comparable in connection size, location and quality to the Premises under a primary lease (and not sublease) to new or renewing tenants, for a comparable term with any arbitration under this paragraph (b)a tenant improvement allowance, if applicable and taking into consideration such amenities as existing improvements, view, floor on which the Premises are situated and the parties like, situated in buildings in Emeryville, California. Notwithstanding anything to the contrary contained herein, the subject Extension Option shall share equally all other expenses automatically terminate and fees be of any no further force or effect, whether or not Tenant has timely exercised such arbitration. The determination rendered in accordance with Extension Option, if an uncured Default exists at the provisions time of this paragraph (b) shall be final and binding in fixing exercise of such Extension Option or at the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any time of commencement of the provisions of this Leasesubject Extended Term.
Appears in 3 contracts
Samples: Office/Laboratory Lease (OmniAb, Inc.), Office/Laboratory Lease (Avista Public Acquisition Corp. II), Office/Laboratory Lease (Ligand Pharmaceuticals Inc)
Option to Extend. (a) Subject to the terms hereof, if Provided (i) during Tenant (as used in this Section 16.16, the Term of term "Tenant" shall also include any Permitted Transferee that succeeds to Tenant's interest under Article 11, above) is not in Default hereunder at the Lease there exists no Default of Tenant hereunder (or any event or circumstance whichtime it exercises this option, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) the creditworthiness of Tenant shall not have assigned is no less than on the Lease or sublet all or any portion of the Premisesdate hereof, and then actually occupies the entire Premises, and (iii) the Lease is still Tenant originally named herein remains in full force and effect (any and possession of all or substantially all of which conditions are for the benefit of, and may be waived by, Landlord)Leased Premises, Tenant shall have the right option to extend the Original Term of this Lease for one extended term three (the "Extended Term"3) successive periods of five (5) yearsyears each (the "Extension Term(s)"). The Extended Extension Term shall commence on July 1be upon the same terms and conditions contained in the Lease during the initial Lease Term (the "Original Term") except (i) this provision giving five (5) extension options shall be amended to reflect the remaining options to extend, 2025, if any and (ii) the Minimum Annual Rent shall end at 11:59 p.m., Boston time, on June 30, 2030be adjusted as set forth below (the "Rent Adjustment"). Tenant shall exercise such option by (i) delivering to Landlord, no later than sixteen (16) months prior to the expiration of the Original Term or, if applicable, the Extension Term, written notice of Tenant's desire to extend by giving written notice to Landlord not later than June 30the Original Term or, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend if applicable, the Term of the Lease for the Extended Extension Term, and no instrument (ii) delivering to Landlord within fifteen (15) business days of renewal need be executedreceipt of the Rent Adjustment, written notice of its rejection thereof (which rejection shall terminate Tenant's option to extend), or that Tenant disputes Landlord's determination of the Rental Adjustment and shall include Tenant's good faith determination of what the Rental Adjustment should be. In the event that Tenant fails to give such case of a notice to Landlorddisputing the Rental Adjustment, the Lease shall automatically terminate on June 30, 2025, Landlord and Tenant shall have mutually work together for a period of ten (10) days to resolve the dispute and, if unable to agree upon the Rental Adjustment within said period, Landlord and Tenant shall in good faith participate in non-binding arbitration of the Rental Adjustment for a period of thirty (30) days. Unless Landlord otherwise agrees in writing, Tenant's failure to timely exercise such option shall waive it and any succeeding option. Landlord shall notify Tenant of the amount of the Rent Adjustment no further later than sixty (60) days after receipt of Tenant's exercise of its option. If Tenant properly exercises its option to extend extend, Landlord and Tenant shall execute an amendment to the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all Lease reflecting the terms and conditions of this Lease, except that the Extension Term. The Minimum Annual Basic Rent for the Extended applicable Extension Term shall be determined pursuant an amount equal to paragraph the Minimum Annual Rent then being quoted by Landlord to prospective tenants of the Building for space of comparable size and quality and with similar or equivalent improvements as are found in the Building, and if none, then in similar buildings in the vicinity, excluding free rent and other concessions. The Minimum Monthly Rent shall be an amount equal to one-twelfth (b1/12) hereof.
(b) The of the Minimum Annual Basic Rent for the first year of the Extended Extension Term and shall be paid at the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay same time and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations same manner as provided in the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 3 contracts
Samples: Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.)
Option to Extend. Borrower shall have the option to extend the term of the Loan (athe “Option to Extend”) Subject from the Maturity Date to October 31, 2019 (the “Extended Maturity Date”), upon receipt of written notice from Borrower of Borrower’s request to exercise the Option to Extend, which notice shall be provided to Lender not more than ninety (90) days but not less than sixty (60) days prior to the terms hereofMaturity Date, if (i) during the Term and upon satisfaction of each of the Lease there exists following conditions precedent:
a. As of both the Conversion Date (as hereinafter defined) and the Maturity Date, no Default of Tenant hereunder (or any as hereinafter defined) shall have occurred and be continuing, and no event or circumstance condition which, with the giving of notice or the passage of time, and the expiration of all cure rights permittedtime or both, would constitute a Default of Tenant)shall have occurred and be continuing, and Borrower shall so certify in writing;
b. 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;
c. There shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) Tenant the date upon which the financial condition of such party was first represented to Lender;
d. Lender shall not have assigned determined that the Lease or sublet all or any portion ratio of (x) the total amount due under the Note on the Conversion Date to (y) the appraised “as proposed” value of the Premises, and then actually occupies Property set forth in the entire Premises, and Original Appraisal (iii) the Lease is still as defined in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, LandlordSection 2.1 below), Tenant shall have the right to extend the Term of this Lease for one extended term as adjusted by Lender in its sole discretion, does not exceed 65% (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed“Conversion LTV”). In the event such “as proposed” value of the Property is not adequate to meet the Conversion LTV, then Borrower may either (i) immediately pay down the outstanding principal balance of the Loan such that Tenant fails said Conversion LTV is met, or (ii) deliver to give Lender an updated appraisal of the Property, at Borrower’s sole cost and expense, indicating, to the reasonable satisfaction of Lender, an “as is” value of the Property that is adequate to meet the Conversion LTV, as adjusted by Lender in its sole discretion upon its review of such notice new appraisal. The valuation date of such updated appraisal shall be within thirty (30) days of the Conversion Date. In the event such “as is” value of the Property is not adequate to Landlordmeet the Conversion LTV, then Borrower may immediately pay down the outstanding principal balance of the Loan such that the Conversion LTV is met. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
e. Guarantor shall reaffirm its obligations under the existing Repayment Guaranty (as defined on Exhibit B attached hereto);
f. The Improvements shall be 100% complete as determined by an inspection thereof by Lender or Lender’s agents and as evidenced by receipt by Lender of the final certificate of occupancy for the Improvements, in form and substance satisfactory to Lender; and
g. Lender shall have received, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender to the title policies issued by Xxxxxxx Title Company in connection with the Loan, including a Down-Date Endorsement pursuant to Procedural Rule P-9b(4), and other endorsements deleting any mechanic’s and materialmen’s lien exceptions and, if applicable, deleting the pending disbursements clause pursuant to Procedural Rule P-8b(2), and, if applicable, a Form T-38 Endorsement pursuant to Procedural Rule P-9b(3), each in form and content satisfactory to Lender, and
h. Borrower shall have reimbursed Lender for all fees and expenses incurred with such Option to Extend, including without limitation, the Lease shall automatically terminate on June 30reasonable fees and expenses of Lender’s counsel, 2025title insurance fees, appraisal fees, inspection fees and Tenant shall have no further option reasonable consultant’s fees, regardless of whether the Option to extend the Term of Extend is completed. Except as modified by this LeaseConversion Option, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this LeaseAgreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect; provided, except however, that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for commencing on the first year (1st) day of the Extended Term shall be first (1st) month after the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Conversion Date, then Landlord and Tenant each (i) Borrower shall give notice (the "Determination Notice") commence making monthly principal payments with respect to the other setting forth their respective determinations of Loan as provided in the Fair Market Rental ValueNote, and, subject and (ii) interest on the Loan shall accrue at a rate equal to the provisions of paragraph One-Month Rate (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser defined in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings Note) plus two and investigations as the arbitrator shall deem appropriate and shall, within thirty one-half percent (302.50%) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions terms of this paragraph (b) the Note. All terms, conditions and requirements of the Loan Documents shall remain in full force and effect after the exercise of the Conversion Option. The date, which date shall be final no later than October 31, 2014, on which Borrower fulfills the requirements set forth in this Section 1.6 and binding Lender converts the Loan to a permanent loan is the “Conversion Date”. In the event that Borrower shall fail to satisfy the foregoing conditions precedent on or before the Conversion Date or in fixing the Fair Market Rental Value. The arbitrator event that Borrower elects, for any reason whatsoever, not to exercise the Conversion Option, including, without limitation, Borrower’s election to repay the Loan in full on or before the Maturity Date or to refinance the Loan with the proceeds of a loan from a lender other than Lender, then Borrower shall not have pay to Lender a fee (the power “Exit Fee”) in an amount equal to add to, modify, or change any the product of (i) three percent (3%) and (ii) the outstanding principal balance of the provisions Loan as of this Leasethe Maturity Date, which Exit Fee shall be payable in full on the Maturity Date or on such earlier date on which Borrower shall have repaid the Loan in full.
Appears in 2 contracts
Samples: Building Loan Agreement (AAC Holdings, Inc.), Building Loan Agreement (AAC Holdings, Inc.)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving under Section 23(a)(i) of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and this Lease; (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still in full force and effect and Tenant actually occupies at least fifty percent (any 50%) of the Premises; and (iii) Tenant shall not have assigned this Lease or currently sublet more than fifty percent (50%) of the Premises, other than to an affiliated entity or successor as described in Section 20(b) above (all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease as to the Premises originally leased hereunder for one extended term (the "“Extended Term"”) of five (5) years. The Extended Term shall commence on July 1, 2025the day immediately following the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the fifth (5th) anniversary of the first day of the Extended Term. Tenant shall exercise such option to extend by giving Landlord written notice of its desire to Landlord do so, not later than June 30nine (9) months prior to the expiration of the Initial Term, 2024it being agreed that time shall be of the essence with respect to the giving of such notice. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to LandlordLandlord within such time, the Term of this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant shall have no further right or option to extend the Term of this Lease, it time being agreed that time shall be of the essence in the giving of such noticeessence. The Extended Term shall be on all the terms and conditions of this Lease, except that that: (i) Landlord shall have no obligation to perform or pay for any construction or improvements to the Annual Premises, with respect to the Extended Term; and (ii) the Basic Rent for the Extended Term shall be determined pursuant to paragraph in accordance with Paragraphs 36(b) and (b) hereofc).
(b) The Annual Basic Rent for the first year of the Extended Term shall be at a rental rate equal to the Fair Market Rental Value (in the North Suburban Boston area) of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term Term, determined without regard to Tenant’s right to extend, as agreed by the parties, it being understood that during the Extended Term, Additional Rent shall continue to be calculated in accordance with Paragraph 7 of this Lease.
(the "Determination Date"). c) (i) The term "“Fair Market Rental Value" ” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises premises in question as of the date (the “Determination Date. For purposes of determining ”) on which the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses same is to become effective and Taxes shall be computed using updated base years, consistent with then-prevailing market practicestaking into account all relevant factors. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six sixty (660) months days before the Determination Date, then Landlord and Tenant each shall give notice (the "“Determination Notice"”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (cii) below, either party may apply to the then president of the Real Estate Finance American Arbitration Association of the Greater Boston Real Estate Board, or any successor thereto, thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there The arbitrator shall be only one arbitrator, a real estate appraiser or consultant who shall have had at least ten (10) years’ continuous experience as a commercial real estate broker or appraiser appraiser, and having significant experience with property similar to the Building in the Natick/Speen Street/Route 30 office rental marketnorth suburban Boston area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (bc), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (bii) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 2 contracts
Samples: Lease (ConforMIS Inc), Lease Agreement (ConforMIS Inc)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right option to extend the Term of this Lease for one extended (1) further term (the "Extended Term") of five (5) years. The Extended Term years (the “Extension Term”) on the same terms and conditions as contained in the Lease, except that: (i) there shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option be no further right to extend after the expiry of the Extension Term; (ii) the Basic Rent shall be Market Rent as determined pursuant to subsection (b) of this section; (iii) there shall be no tenant’s allowance or rent-free period for the Extension Term; and (iv) the Premises shall be accepted by giving written Tenant in “as is” condition at the commencement of the Extension Term without Landlord being required to perform any work. Such right to extend shall be exercisable by notice to Landlord by not later than June 30nine (9) months, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend not earlier than twelve (12) months, prior to the Term expiry of the Lease for original Term hereof provided that, at the Extended Term, and no instrument time of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term , Tenant is Wescom Inc. and/or a Permitted Transferee and the Lease has not otherwise been assigned and, further, provided Tenant is not then in receipt of a notice of default and has not become bankrupt or insolvent and has not made an assignment for the benefit of creditors and has not taken the benefit of any statute in force for bankrupt or insolvent debtors and a petition in bankruptcy has not been filed against Tenant and a receiving order has not been made against Tenant, failing which such right shall be on all the terms null and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofvoid and forever extinguished.
(b) The Annual Basic Rent for the first year of the Extended Extension Term shall be equal to the Fair market rent for the Premises (“Market Rental Value Rent”). As used herein, “Market Rent” means the annual rental which could reasonably be obtained by Landlord for the Premises from a willing renewing tenant or willing renewing tenants dealing at arms’ length with Landlord in the market prevailing for a term commencing on the commencement date of the Extension Term, having regard to all relevant circumstances including the size and location of the Premises, the facilities afforded, the terms of the lease thereof (including its provisions for Additional Rent), the condition of the Premises (exclusive and the extent and quality of the cost improvements therein (disregarding Tenant’s trade fixtures and also disregarding any deficiencies in the condition and state of supplying repair of the Premises as a result of Tenant’s failure to comply with its obligations hereunder in respect of the maintenance and repair of the Premises) and the use of the Premises and having regard to rentals currently being obtained for space in the Building and for comparable space in other buildings comparably located. The Market Rent for the Extension Term shall be as agreed upon between Landlord and Tenant electricity)or, failing agreement by Landlord and Tenant by not later than three (3) months prior to the expiry of the Term hereof the Market Rent shall be established as in the manner set out in subsection (c) of this section. In the event that the Basic Rent payable during the Extension Term has not been determined prior to the commencement of the Extended Term Extension Term, then until such determination has been made, Tenant shall pay Basic Rent at a rate equal to one hundred fifty (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease 150%) percent of the Premises as Basic Rent payable during the last year of the Determination Dateoriginal Term hereof. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final Upon determination of the Fair Market Rental Value. That there Basic Rent for the Extension Term, Tenant shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser pay to Landlord any deficiency in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shallpayments of Basic Rent previously made by Tenant, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Landlord will credit to Tenant’s Determination Noticerental account any excess of Basic Rent previously paid and shall apply same toward Rent which thereafter accrues due under the Extension Term, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseuntil exhausted.
Appears in 2 contracts
Samples: Multi Tenant Lease Agreement (PointClickCare Corp.), Lease Agreement (PointClickCare Corp.)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of each such exercise, if (i) during the Term of the this Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, is in full force and the expiration of all cure rights permitted, would constitute a Default of Tenant)effect, and (ii) Tenant no Event of Default shall not have assigned occurred and be continuing (either at the Lease time of exercise or sublet all or any portion at the commencement of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlordan Extended Term), Tenant shall have the right and option to extend the Term of this Lease for one two (2) extended term terms (collectively, the "“Extended Term"Terms”) of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years each by giving written notice to Landlord not later that twelve (12) months (nor earlier than June 30, 2024eighteen (18) months) prior to the expiration date of the Term then in effect. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the applicable Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, the this Lease shall automatically terminate on June 30, 2025at the end of the Term then in effect, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time . Each Extended Term shall be commence on the date immediately succeeding the expiration date of the essence in original Term of the giving preceding Extended Term, as the case may be, and shall end on the day immediately preceding the fifth anniversary of the first day of such noticeExtended Term. The Extended Term shall be on all the terms and conditions of this Lease, except that except: (i) during the Annual second Extended Term, Tenant shall have no further option to extend the Term, and (ii) the Basic Rent rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term Terms shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term in question, taking into account all relevant factors, determined pursuant to paragraph (b), but in no event shall the "Determination Date"). The term "Fair Market Rental Value" shall mean Basic Rent for the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease Extended Term be less than the Basic Rent at the expiration of the Premises as original or Extended Term immediately preceding the commencement of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Term in question.
(b) Within thirty (30) days after receiving Tenant’s Share notice extending the Term of Operating Expenses and Taxes this Lease pursuant to paragraph (a) above, Landlord shall be computed using updated base years, consistent provide Tenant with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon Landlord’s good faith estimate of the Fair Market Rental Value within six (6) months before of the Determination DatePremises for the upcoming Extended Term based upon rents being paid by tenants entering into leases for comparable space similar in size, then Landlord build-out, amenities and Tenant each shall give notice (term in the "Determination Notice") Waltham area, not including the value of any improvements made to the other setting forth their respective determinations Premises by Tenant at Tenant’s sole cost and expense. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental ValueValue as set forth in Landlord’s notice referred to above, andand the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, subject then Tenant may rescind its exercise of the option to extend by written notice delivered to Landlord within ten (10) days after the provisions expiration of paragraph such thirty (c) below30)-day period. If Tenant does not so exercise its right to rescind, then either party may apply to submit the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental ValueValue of the Premises to arbitration by giving notice to the other party naming the initiation party’s arbitrator within ten (10) days after the expiration of such ten (10)-day period. That there Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be only one determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS/ENDISPUTE, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. Within fifteen (15) days after the appointment of the third arbitrator, the three arbitrators shall determine the Fair Market Rental Value of the Premises and give notice thereof to the parties hereto, and the arbitrators’ determination shall be binding upon the parties. All arbitrators shall be appraisers or other qualified real estate professionals who shall are independent from the parties who have had at least ten (10) years’ experience as a years commercial real estate broker or appraiser experience in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenantgreater Boston area. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) third arbitrator shall be final and binding in fixing shared equally by the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseparties.
Appears in 2 contracts
Samples: Lease Agreement (Repligen Corp), Lease Agreement (Repligen Corp)
Option to Extend. (a) Subject to Provided that the terms hereof, if Tenant: (i) during the Term of the Lease there exists no Default of Tenant hereunder is Xxxxxx.Xxx Co. and/or Tucows (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and Delaware) Inc.; (ii) Tenant shall not have assigned the Lease or sublet all or any portion is in actual, physical possession of the whole of the Leased Premises, and then actually occupies the entire Premises, ; and (iii) pays the Lease is still Rent as and when due and punctually observes and performs the terms, covenants and conditions to be observed and performed by it in full force and effect (any and all accordance with the terms of which conditions are for this Lease, the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term"1) further period of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by years (the “Extension Term”) upon giving the Landlord written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option its election to extend the Term of this Lease, it being agreed that time shall be (the “Extension Notice”) at least nine (9) months and not more than twelve (12) months prior to the expiration of the essence in the giving of such noticeTerm. The Extended Extension Term shall be on all upon the same terms and conditions of as this Lease, Lease except that the Annual Basic Rent for the Extended Term that:
(a) There shall be determined pursuant no further right to paragraph (b) hereof.extend;
(b) The Annual Landlord shall have no obligation to pay to the Tenant any Tenant allowance, provide any Fixturing Period, rent free period or any other period of early occupancy, do or perform any Landlord’s Work or provide any other inducement or incentive; and
(c) The Basic Rent for payable during the first year of the Extended Extension Term shall be the Fair Market Rental Value of Rent for the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Leased Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within date which is six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") prior to the other setting forth their respective determinations expiry of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience Term as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and negotiated between the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered or as otherwise determined in accordance with the provisions of this paragraph (b) Section, provided that the Basic Rent payable during the Extension Term, whether negotiated between the parties or determined as aforesaid, shall not, in any event, be final and binding in fixing less than the Fair Market Rental Value. The arbitrator shall not have Basic Rent payable during the power to add to, modify, or change any last year of the provisions of this Leaseimmediately preceding Term.
Appears in 2 contracts
Samples: Third Lease Extension and Amending Agreement (Tucows Inc /Pa/), Third Lease Extension and Amending Agreement (Tucows Inc /Pa/)
Option to Extend. Borrower shall have two (a2) Subject options to extend the term of the Loan (each an “Option to Extend”) from the Maturity Date to May 20, 2015 (the “First Extended Maturity Date”) and then from the First Extended Maturity Date to May 20, 2016 (the “Second Extended Maturity Date”), upon receipt of written notice from Borrower of Borrower’s request to exercise the Option to Extend, which notice shall be provided to Lender not more than 90 days but not less than 30 days prior to the terms hereofMaturity Date or First Extended Maturity Date, if (i) during the Term as applicable, and upon satisfaction of each of the Lease there exists following conditions precedent:
a. As of the date of Borrower’s delivery of its notice of request to exercise the Option to Extend, and as of the Maturity Date or First Extended Maturity Date, as applicable, no Default of Tenant hereunder (or any as hereinafter defined) shall have occurred and be continuing, and no event or circumstance condition which, with the giving of notice or the passage of time, and the expiration of all cure rights permittedtime or both, would constitute a Default of Tenant)shall have occurred and be continuing, and Borrower shall so certify in writing;
b. 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;
c. There shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) Tenant the date upon which the financial condition of such party was first represented to Lender;
d. On or before the Maturity Date, or First Extended Maturity Date, as applicable, Borrower shall not have assigned pay to Lender in connection with each Option to Extend an extension fee in the Lease or sublet all or amount of THIRTY-TWO THOUSAND ONE HUNDRED AND NO/100THS DOLLARS ($32,100.00);
e. During any portion Option to Extend, Borrower shall make the payments for such Option to Extend set forth in the Note which provides for monthly payments of principal in an amount calculated based on equal monthly installments of the Premisesthen-outstanding principal balance of the Note over an assumed 30-year amortization period plus interest; Loan No. 1003653
f. The Property must have a Constant Carried (as defined below) as follows:
i. With respect to the first Option to Extend, the Property must have a Constant Carried of not less than 9.5% as of the Maturity Date.
ii. With respect to the second Option to Extend, the Property must have a Constant Carried of not less than 10.0% as of the First Extended Maturity Date.
g. The Improvements shall be 100% complete and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant Lender shall have received such endorsements, in form and content satisfactory to Lender, to the right Title Policy as Lender may require. Except as modified by this Option to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1Extend, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay Agreement and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there Loan Documents as modified and approved by Lender shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser remain unmodified and in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings full force and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseeffect.
Appears in 2 contracts
Samples: Building Loan Agreement, Building Loan Agreement (Global Growth Trust, Inc.)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant Lessee shall have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgage or transferred, to extend the Original Term for five (5) additional years (the "Extension Period") provided that (a) Lessee shall give Lessor notice of Lessee's exercise of such option at least nine (9) full calendar months prior to the expiration of the Original Term, and (b) no default of Lessee (after expiration of applicable notice and cure periods, if any) shall exist at the time of giving each applicable notice and (c) the original Lessee named herein is occupying the entire demised premises both at the time of giving the applicable notice and at the time of commencement of such Extension Period. Except for the amount of Annual Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional period through which the Term of this Lease shall be extended as aforesaid, except that there shall be no further options to extend the Term nor shall Lessor be obligated to make or pay for one extended term (any improvements to the "Extended Term") demised premises nor pay any inducement payments of five (5) yearsany kind or nature. The Extended Term Nothing contained in this paragraph shall commence on July 1, 2025, be deemed or construed to limit Lessor's obligation to maintain and repair the Building and the Land as provided in this Lease. If Lessee shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall give notice of its exercise of each such option to extend by giving written notice to Landlord not later than June 30in the manner and within the time period provided aforesaid, 2024. The the Term of this Lease shall be extended upon the giving of such notice without the requirement of any further attention on the part of either Lessor or Lessee. Lessor thereby reserves the right, exercisable by Tenant Lessor in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. If Lessee shall automatically and irrevocably extend the Term fail to give timely notice of the Lease for exercise of such option as aforesaid or if any of the Extended Termconditions set forth above are not satisfied as and when specified herein, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant Lessee shall have no further option right to extend the Term of this Lease, it time being agreed that time shall be of the essence in of the giving foregoing provisions. Any termination of such noticethis Lease Agreement shall terminate the rights hereby granted Lessee. The Extended Term shall be on all monthly installment of Annual Base Rent payable for each twelve (12) month period during the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term Extension Period shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.follows: PERIOD $/PER SF ANNUAL BASE RENT MONTHLY RENT ------ -------- ---------------- ------------ Year 6 $ 7.30 $ 248,813 $ 20,734.43 Year 7 $ 7.60 $ 259,038 $ 21,586.53 Year 8 $ 7.90 $ 269,263 $ 22,438.63 Year 9 $ 8.20 $ 279,488 $ 23,290.73 Year 10 $ 8.50 $ 289,714 $ 24,142.83 --------- TOTAL ...........................$1,346,316
Appears in 1 contract
Option to Extend. (a) Subject to Provided that at the terms hereof, if time of such exercise (i) during the Term of the Lease there then exists no Default of Tenant hereunder (or any event or circumstance whichLESSEE beyond applicable notice and cure periods, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the this Lease or sublet all or any portion of the Premises, is then in full force and then actually occupies the entire Premiseseffect, and (iii) LESSEE is in actual occupancy in excess of 75% of the Lease is still in full force and effect (any and all of which conditions are for the benefit ofPremises, and may be waived by, Landlord), Tenant LESSEE shall have the right and option to extend the Term term of this Lease for one (1) extended term of five years (the "Extended Term") of five (5) years). The Extended Term shall commence on July 1, 2025the day immediately succeeding the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the fifth anniversary of the first day of such Extended Term. Tenant LESSEE shall exercise such option to extend by giving written notice to Landlord LESSOR of its desire to do so not later than June 30twelve (12) months prior to the expiration date of the Initial Term. Provided the conditions of clauses (i), 2024. The (ii) and (iii) of this section shall have been satisfied, the giving of such notice by Tenant LESSEE shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant LESSEE fails to give such notice to LandlordLESSOR, the this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant LESSEE shall have no further option to extend the Term of this Lease, it being agreed that time shall be is of the essence in with respect to the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that (I) option to extend that Term of this Lease, and (II) the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the at Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity)Value. LESSOR shall designate Fair Market Value, to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease ") by written notice to LESSEE within sixty (60) days of the Premises as receipt of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicesnotice from LESSEE. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six LESSEE disagrees with such designation, (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.the
Appears in 1 contract
Samples: Commercial Lease (Viant Corp)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, is in full force and the expiration of all cure rights permitted, would constitute a Default of Tenant)effect, and (ii) no Event of Default shall have occurred and be continuing (either at the time of exercise or at the commencement of the Extended Term), and (iii) Tenant shall be in occupancy of the entire Premises for the conduct of its business and shall not have assigned the Lease or sublet all or the Premises (any portion of the Premiseswhich conditions described in clauses (i), and then actually occupies the entire Premises(ii), and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, by Landlord at any time in Landlord’s sole discretion), Tenant shall have the right and option to extend the Term of this the Lease for one (1) extended term (the "“Extended Term"”) of five three (53) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years by giving written notice to Landlord not later than June 30, 2024twelve (12) months and not sooner than fourteen (14) months prior to the expiration date of the Term. The effect of the giving of such notice of extension by Tenant shall be to automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, at the end of the original Term and Tenant shall have no further option to extend the Term of this the Lease, it being agreed that time . The Extended Term shall be commence on the day immediately succeeding the expiration date of the essence in current Term and shall end on the giving day immediately preceding the third (3rd) anniversary of such noticethe first day of the Extended Term. The Extended Term shall be on all the terms and conditions of this the Lease, except that except: (x) during the Annual Basic Extended Term, Tenant shall have no further option to extend the Term, (y) the Base Rent for the Extended Term shall be determined pursuant to paragraph the greater of (bA) hereof.
(b) The Annual Basic Rent for the first year 95% of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive as of the cost commencement of supplying the Extended Term, taking into account all relevant factors, determined pursuant to Section 6(b) below and (B) the Base Rent in effect for the last year of the prior Term, and (z) 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 electricity), for any alterations made or to be established made by Tenant, or to grant Tenant any rent concession.
(b) Promptly after receiving Tenant’s notice extending the Term of the Lease pursuant to Section 6(a) above, Landlord shall provide Tenant with Landlord’s good faith estimate of the Fair Market Rental Value (as defined in Section 6(c) below) of the Premises for the upcoming Extended Term. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, then the parties shall negotiate in good faith to reach agreement thereon within thirty (30) days after 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 Value of the Premises to arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30)-day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the nearest office of the American Arbitration Association. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations of the Fair Market Rental Value of the Premises to the third arbitrator within five (5) 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. All arbitrators shall be commercial real estate brokers who are independent from the parties and who have had at least ten (10) years experience leasing comparable buildings in the Merrimack area. Each party shall pay the fees of its own arbitrator, and the fees of the third arbitrator shall be shared equally by the parties. If as of the commencement of the Extended Term the amount of the Base 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 the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Base Rent, such overpayment shall be 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.
(c) As used in the "Determination Date"). The Lease, the term "“Fair Market Rental Value" ” shall mean the annual fixed rent rents that a willing tenant would pay and a willing landlord would landlords of comparable buildings in the Merrimack area have agreed to accept, each acting in its own best interest and without duresssophisticated nonaffiliated tenants of comparable buildings have agreed to pay, in an current arms-length lease length, renewal transactions for comparable space (in terms of the Premises as condition, improvements, floor location, view and floor height) of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") a comparable size for uses comparable to the other setting forth their respective determinations of the Fair Market Rental ValuePermitted Use, and, subject for a term equal to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings applicable Extended Term and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally taking into account all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaserelevant factors.
Appears in 1 contract
Samples: Lease (Pennichuck Corp)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Original Term for one (1) additional consecutive period of five (5) years (hereinafter referred to as the "Extension Period"), provided that (a) Tenant shall give Landlord notice of Tenant's exercise of such option at least twelve (12) months prior to the expiration of the Original Term (but such notice may not be given sooner than fifteen (15) months prior to expiration of the Original Term), (b) no Event of Default shall exist at the time of giving the applicable notice and the commencement of the Extension Period and (c) there has been no assignment of this Lease (except to a Permitted Assignee) and no subletting of more than twenty five (25%) of the Premises (exclusive of subleases to Permitted Affiliates). Except for the amount of Annual Fixed Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional period through which the Term of this Lease shall be extended as aforesaid, provided, however, (i) there shall be no further options to extend the Term, (ii) Landlord shall not be obligated to make or pay for one extended term any improvements to the Premises nor pay or provide any inducement payments of any kind or nature and (the "Extended Term"iii) of five there shall be no free rent (5or reduced rent) yearsperiod. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. If Tenant shall give notice of its exercise of such option to extend by giving written notice to Landlord not later than June 30in the manner and within the time period provided aforesaid, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of this Lease shall be extended upon the Lease for giving of each such notice without the Extended Termrequirement of any further attention on the part of either Landlord or Tenant except as may be required in order to determine Annual Fixed Rent as hereafter set forth. Landlord hereby reserves the right, and no instrument of renewal need be executedexercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. In the event that If Tenant fails shall fail to give timely notice of the exercise of such notice to Landlordoption as aforesaid, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option right to extend the Term of this Lease, it time being agreed that time shall be of the essence in of the giving of such noticeforegoing provisions. The Extended Term shall be on all the terms and conditions Any termination of this Lease, except that Lease Agreement shall terminate the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofrights hereby granted Tenant.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Samples: Lease (Netezza Corp)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and ; (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still in full force and effect effect; and (iii) Tenant shall not have assigned this Lease or sublet any and or all of which conditions are for the benefit of, and may be waived by, LandlordPremises (except as permitted pursuant to Paragraph 20(b), Tenant shall have the right to extend the Term of this Lease as to the Premises originally leased hereunder for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025the day immediately following the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the fifth anniversary of the first day of the Extended Term. Tenant shall exercise such option to extend by giving Landlord written notice of its desire to Landlord do so, not later than June 30twelve (12) months prior to the expiration of the Initial Term, 2024it being agreed that time shall be of the essence with respect to the giving of such notice. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of this Lease for the Extended Term of this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Term of this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant shall have no further right or option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that that: (i) Landlord shall have no obligation to pay any construction or improvements to the Annual Premises, with respect to the Extended Term; and (ii) the Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofin accordance with Paragraph 36(b).
(b) The Annual Basic Rent for the first year of the Extended Term shall be the greater of (i) Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as hereinafter defined) as of the commencement of the Extended Term Term, determined without regard to Tenant's right to extend, as agreed by the parties or (ii) the "Determination Date"). Basic Rent for the last year of the Term, it being understood that during the Extended Term, Additional Rent shall continue to be calculated in accordance with Paragraph 7.
(c) (i) The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises premises in question as of the date (the "Determination Date. For purposes of determining ") on which the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicessame is to become effective. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six five (65) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (cii) below, either party may apply to the then president of the Real Estate Finance American Arbitration Association of the Greater Boston Real Estate Board, or any successor thereto, thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there The arbitrator shall be only one arbitrator, a real estate appraiser or consultant who shall have had at least lease ten (10) years’ ' continuous experience as a commercial real estate broker or appraiser appraiser, and having significant experience with property similar to the Building in the Natick/Speen Street/Route 30 office rental marketgreater Boston area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s 's or Tenant’s 's Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (bk), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (bii) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the this Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, is in full force and the expiration of all cure rights permitted, would constitute a Default of Tenant)effect, and (ii) Tenant no Event of Default shall not have assigned occurred and be continuing (either at the Lease time of exercise or sublet all or any portion at the commencement of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, LandlordExtended Term), Tenant shall have the right and option to extend the Lease Term of this Lease for one (1) extended term (the "“Extended Term"”) of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years by giving written notice to Landlord not later than June 30, 2024twelve (12) months prior to the expiration date of the original Xxxxx Xxxx. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, the this Lease shall automatically terminate on June 30, 2025at the end of the Lease Term then in effect, and Tenant shall have no further option to extend the Lease Term. The Extended Term of this Lease, it being agreed that time shall be commence on the day immediately succeeding the expiration date of the essence in original Lease Term and shall end on the giving day immediately preceding the fifth (5th) anniversary of the first day of such noticeExtended Term. The Extended Term shall be on all the terms and conditions of this Lease, except that except: (i) during the Annual Basic Extended Term, Tenant shall have no further option to extend the Term, and (ii) the Base Rent for the Extended Term shall be determined pursuant equal to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of hereinafter defined) for the Extended Term (Term, taking into account all relevant factors, determined pursuant to Section 1(b) below. For purposes of this Section 1, the "Determination Date"). The term "“Fair Market Rental Value" Value of the Premises” shall mean the fixed annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of accept for the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the taking into account all then relevant factors.
(b) Within thirty (30) days after receiving Tenant’s Share notice extending the Lease Term of Operating Expenses and Taxes this Lease pursuant to Section 1(a) above, Landlord shall be computed using updated base years, consistent provide Tenant with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon Landlord’s good faith estimate of the Fair Market Rental Value of the Premises for the upcoming Extended Term based upon rents being paid by tenants entering into leases for comparable space, for a comparable term and in comparable buildings in the Route 495 west suburban market and taking into account all then relevant factors. If Tenant disagrees with Xxxxxxxx’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, Tenant shall notify Landlord within six thirty (630) months before days after its receipt of Landlord’s notice setting forth Tenant’s estimate of the Determination DateFair Market Rental Value of the Premises and the parties agree in good faith to attempt to reach agreement on the Fair Market Rental Value of the Premises for the Extended Term. If Tenant fails to notify Landlord that Tenant disagrees with Xxxxxxxx’s estimate and setting forth Tenant’s Fair Market Rental Value estimate within such thirty (30) day period then Tenant will be deemed to have accepted Landlord’s estimate of the Fair Market Rental Value for the Premises during the Extended Term. If the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Xxxxxx, then Landlord and Tenant each shall give either party may submit the determination of the Fair Market Rental Value of the Premises to arbitration by giving notice (the "Determination Notice") to the other setting party naming the initiating party’s arbitrator within ten (10) business days after the expiration of such thirty (30) day period. Within twenty (20) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such twenty (20) day period, the initiating party shall deliver written notice of such failure to the responding party and the responding party shall have a period of ten (10) business days after receipt of such notice to appoint its arbitrator and deliver written notice thereof to the initiating party. If the responding party fails to notify the initiating party of its designated arbitrator within the foregoing additional ten (10) business day period, then the second arbitrator shall be chosen in the same manner as described below with respect to the selection of the third arbitrator. Upon the selection (or appointment, as the case may be) of the second arbitrator, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of American Arbitration Association, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as “baseball arbitration”, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Xxxxxxxx’s selected arbitrator and Xxxxxx’s selected arbitrator shall deliver their respective determinations of the Fair Market Rental Value, and, subject Value of the Premises to the provisions of paragraph third arbitrator within five (c5) below, either party may apply to the then president business days of the Real Estate Finance Association appointment of the Greater Boston Real Estate Board, third arbitrator and the third arbitrator shall render his or any successor thereto, for her decision within ten (10) days after receipt of both of the designation of an arbitrator satisfactory to both parties to render a final determination other two determinations of the Fair Market Rental ValueValue of the Premises. That there The third arbitrator’s decision shall be only one arbitrator, binding on both Landlord and Tenant. All arbitrators shall be commercial real estate brokers who shall have had at least ten (10) years’ years experience as a real estate broker or appraiser in commercial leasing transactions in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as 495 south suburban market and, in the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one case of the determinations set forth third arbitrator, shall not have acted in any capacity for either Landlord’s Landlord or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and TenantTenant within five (5) years of his or her selection. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) third arbitrator shall be final shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any as of the provisions Commencement Date of this Leasethe Extended Term the amount of the Base Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord therefor and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of the Commencement Date of the Extended Term if necessary.
Appears in 1 contract
Option to Extend. (a) Subject to Sections 35.A and 35.B of the terms hereofOriginal Lease are hereby deleted in their entirety, if and the following is hereby inserted in their stead:
A. Provided that at the time of such exercise (i) during the Term of the Lease there then exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of Lessee beyond applicable notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant)periods, and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still then in full force and effect (any and all of which conditions are for the benefit ofeffect, and may be waived by, Landlord), Tenant Lessee shall have the right and option to extend the Initial Term of this Lease for one extended term two (the "Extended Term"2) successive periods of five (5) yearsyears each (each, an “Extended Term”). The first Extended Term shall commence on July 1, 2025the day immediately succeeding the expiration date of the Initial Term, and shall end at 11:59 p.m.on the day immediately preceding the fifth anniversary of the first day of such Extended Term, Boston timeand the second Extended Term shall commence on the day immediately succeeding the expiration date of the first Extended Term, and shall end on June 30, 2030the day immediately preceding the fifth anniversary of the first day of such second Extended Term. Tenant LESSEE shall exercise such option options to extend by giving written notice to Landlord LESSOR of its desire to do so not later than June 30twelve (12) months prior to the expiration date of the Initial Term or the first Extended Term, 2024as the case may be. The Provided the conditions of clauses (i) and (ii) of this Section shall have been satisfied, the giving of such notice by Tenant LESSEE shall automatically and irrevocably extend the Term of the Lease for the particular Extended Term, and no instrument of renewal need be executed. In the event that Tenant LESSEE fails to give such notice to LandlordLESSOR, the this Lease shall automatically terminate on June 30expire at the end of the Initial Term or the first Extended Term, 2025as the case may be, and Tenant LESSEE shall have no further option to extend the Term of this Lease, it being Term. It is agreed that time shall be is of the essence in with respect to the giving of such notice. The Extended Term Terms shall be on all the terms and conditions of this Lease, except that (I) the Annual option to extend the Term as set forth in this Section shall be deleted (except that the option to exercise the second Extended Term shall continue to be effective in accordance with this Section during the first Extended Term), (II) the Basic Rent for the Extended Term Terms shall be determined pursuant at 95% of fair market value as designated by LESSOR by written notice to paragraph LESSEE within sixty (b60) hereof.
days after receipt of notice from LESSEE, and (bIII) The Annual Basic Rent Base Operating Expenses and Base Taxes shall be calendar year 2014 and fiscal year 2015, respectively, for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base yearscalendar year 2019 and fiscal year 2020, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor theretorespectively, for the second Extended Term. If LESSEE disagrees with such designation of an arbitrator satisfactory to both parties to render a final determination fair market value (the “Designation”), LESSEE shall by written notice, advise LESSOR of such disagreement within fifteen (15) business days after LESSEE’S receipt of the Fair Market Rental Value. That there shall be only one arbitratorDesignation, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one time being of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator essence; otherwise LESSEE shall conclusively be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any deemed to have agreed to such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this LeaseDesignation.
B. “Intentionally Omitted”.
Appears in 1 contract
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right option (the "Option") to extend the Term term of this Lease for one extended term (the 1) additional period ("Extended Option Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving years upon all of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that other than the Annual Basic Rent for the Extended Term Minimum Monthly Rent, which shall be determined pursuant as described below. The Option must be exercised, if at all, by Tenant giving Landlord written notice of the exercise thereof no more than twelve (12) and no less than eight (8) months prior to paragraph the expiration of this Lease Term (b) hereofas extended by any previously duly exercised Option). Any failure of Tenant to give due notice of its exercise of the Option within the required time shall constitute an irrevocable election on the part of Tenant not to exercise the Option, and this Lease shall expire at the end of the Term. Tenant shall have no other right to extend this Lease Term beyond the Option Term described herein. Notwithstanding anything set forth herein to the contrary, if on the date of giving the notice, there exists any Event of Default on the part of Tenant under this Lease, this Section shall be void. Tenant's notice shall be ineffective, the Option Term shall not commence and this Lease shall expire as scheduled. In addition, any due exercise of the Option hereunder shall be voidable by Landlord if, at the time of such exercise, there existed any condition of default on the part of Tenant that Tenant thereafter fails to cure within any applicable notice and/or cure period.
(b) The Annual Basic Minimum Monthly Rent during the Option Term initially shall be the "Fair Market Rental Value" of the Premises, as defined below, as of the first day of the Option Term; provided, however, that in no event shall the Minimum Monthly Rent for any portion of the Option Term be less than the Minimum Monthly Rent in effect for the last month of the Term immediately preceding the commencement of the Option Term, regardless of any determination of a Fair Market Rental Value pursuant to the other provisions of this Section that would result in a lower Minimum Monthly Rent.
(c) Upon exercise of the Option, Landlord and Tenant shall, in good faith, attempt to reach a mutually acceptable Fair Market Rental Value of the Premises and consequent Minimum Monthly Rent for the first year Option Term. If Landlord and Tenant cannot agree upon the Fair Market Rental Value within thirty (30) days of Tenant's exercise of the Extended Term Option, then, each party shall make a separate determination of the Fair Market Rental Value within five (5) business days thereafter and, concurrently exchange such determinations and such determinations shall be submitted to arbitration as set forth below, Within ten (10) days thereafter, Landlord and Tenant shall each select and notify the other of the name of an "Evaluator," who, for purposes of this Section, shall be an independent and impartial real estate professional (such as a licensed real estate agent) having more than ten years' experience in the leasing of space comparable to the Premises. The determination of the Evaluators shall be limited solely to the issue of whether Landlord's or Tenant's submitted Fair Market Rental Value is the closest to the actual Fair Market Rental Value, as determined by the Evaluators, taking into account the requirements of this Section 3.4 (i.e., the arbitrators may only select Landlord's or Tenant's determination and shall not be entitled to make a compromise determination). In the event the Evaluators cannot agree on the actual Fair Market Rental Value, each Evaluator shall promptly proceed to select a third Evaluator, who shall have the aforesaid qualifications of an Evaluator. The three Evaluators shall determine the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), and shall deliver to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If both Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations a copy of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.such
Appears in 1 contract
Samples: Standard Industrial Net Lease (Genetronics Biomedical Corp)
Option to Extend. If the LESSEE is not then in default, LESSOR does hereby grant to LESSEE the option to extend this Lease for two (a2) Subject to additional five (5) year term, commencing on the terms hereof, if (i) during the Term expiration of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, initial term and the expiration of all cure rights permittedthe first extended term, would constitute a Default as the case may be, upon the same terms and conditions as herein contained except the annual base rent set forth in paragraph 4 hereof shall be at the rate set forth below. The annual rent for the first-extended term shall be the sum of Tenantthe following:
(i) $317,484.00 per year (calculated as 24,268 square feet of space on the first and second floors at $13.00 per square foot plus 200 square feet of space in the basement at $10.00 per square foot), and ; plus
(ii) Tenant shall not have assigned the Lease or sublet all or any portion annual fair value of the Premisesparking spaces made available to LESSEE, all to be reasonably determined by LESSOR ("Outdoor Parking"); it being expressly understood and then actually occupies agreed by the entire Premises, and parties that the first five (iii5) the Lease is still in full force and effect (any and all of which conditions are spaces taken by LESSEE shall be at no cost or charge to LESSEE. The annual rent for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one second extended term (the "Second Extended Term") shall be adjusted at the commencement of the Second Extended Term and shall be ninety (90%) percent of the then fair market rental (the "Market Rent") of the Leased Premises plus the annual fair value of LESSEE's Outdoor Parking spaces as reasonably determined by LESSOR; it being expressly understood and agreed by the parties that the first five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend spaces taken by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time LESSEE shall be of the essence in the giving of such noticeat no cost or charge to LESSEE. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Market Rent for the Extended Term shall be determined pursuant as set forth on Exhibit E to paragraph (b) hereof.
(b) The Annual Basic Rent this Lease. Notwithstanding the foregoing, in no event shall the annual base rent for the first second extended term be less than the annual base rent for the last year of the Extended Term first extended term. The option shall be exercised by written notice from LESSEE and received by LESSOR at least four (4) months prior to the Fair Market Rental Value -43- 57 expiration of the Premises (exclusive of initial term or the cost of supplying Tenant electricity)first extended term, to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leasecase may be.
Appears in 1 contract
Samples: Sublease (Interliant Inc)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant Lessee shall have the right option to extend the Term of this Lease for one extended term (the "Extended Term"1) additional period of five (5) yearsyears (the "Option"). The Extended Term period of the Option is referred to herein as the "Option Term." Lessee shall commence on July 1have no right or interest to exercise the Option unless, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30one hundred fifty (150) days prior to the end of the Original Term, 2024Lessee provides Lessor with (a) written notice of its exercise of the Option (the "Extension Notice"). The giving Lessee shall have no right or interest to either exercise the Premises Option or the First Offer Space Option unless: (a) no Event of such notice by Tenant shall automatically Default on the part of Lessee under this Lease is then continuing under this Lease or the lease demising the First Offer Space, if applicable; and irrevocably extend (b) during the Term of the Lease Lease, (i) Lessee has not filed for the Extended Termor sought protection under any bankruptcy statute, and no instrument (ii) Lessee has not failed to obtain a vacation from any involuntary bankruptcy proceeding within one hundred twenty (120) days of renewal need such filing. Base Rent payable during the first year of the Option Term shall be executed. In an amount equal to "Market Rent" (as defined in 53(b) below) All of the event that Tenant fails to give such notice to Landlordterms, covenants, conditions, provisions and agreements of the Lease shall automatically terminate on June 30apply to the Option, 2025, and Tenant except that Lessee shall have no further additional option to extend the Term. Lessee's failure to exactly comply with any of the time or other requirements herein, shall cause the Option to automatically expire and, in such event, this Lease shall terminate upon the expiration of the Original Term.
(b) As used herein, "Market Rent" shall mean the price that a ready and willing tenant would pay, at commencement of the Option Term, as monthly base rent to a ready and willing Lessor if such office space were offered for lease on the open market for a reasonable period of time and be the sum of the fair market monthly rental rate per rentable square foot multiplied by the rentable area of the Premises, determined as follows: (a) as mutually agreed by Lessor and Lessee within ten (10) days of Lessor's delivery to Lessee of Lessor's opinion of the Market Rent for the Option Term of this Lease("Lessor Rent Notice", it being agreed that time which shall be delivered to Lessee within ten (10) days of receipt of Lessee's written Extension Notice); or (b) in the event that Lessor and Lessee are unable to so agree within such ten (10) day period, the Market Rent shall be determined by concurrent appraisals pursuant to Section 53(c) below. The Market Rent shall be determined by considering (i) the highest and best use of the essence in Premises, (ii) the giving duration of such notice. The Extended Term shall be on all the Option Term, (iii) the quality and prestige of the Premises (as then improved and maintained as required by the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as (iv) recent monthly rental rates for buildings of the commencement of the Extended Term similar size and location, (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, v) anticipated CPI Index changes during the Extended Option Term; (vi) the condition and quality of comparable tenant improvements in buildings of similar quality and location, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6vii) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser leasing commissions in the Natick/Speen Street/Route 30 office rental San Diego market. The arbitrator shall conduct such hearings and investigations as , (viii) the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination NoticeLessee's credit, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally x) all other expenses relevant terms and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions conditions of this Lease.
Appears in 1 contract
Samples: Standard Industrial/Commercial Multi Tenant Lease (Nuvasive Inc)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right and option (the "Option"), which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Term of this Lease for one extended term (1) additional consecutive period of two (2) years beginning on April 1, 2002 and expiring on March 31, 2004 (hereinafter referred to as the "Extension Period"), provided that (a) Tenant shall give Landlord notice of Tenant's intention to exercise such option ("Notice of Intention") not sooner than February 1, 2001 and not later than March 31, 2001 (b) no Default of Tenant shall exist at the time of giving the Notice of Intention or on the Revocation Date (as hereafter defined) or on the date of commencement of the Extension Period, (c) the Original Tenant named herein is itself occupying the entire Premises at least 30 days prior to the time of commencement of the Extension Period and (d) Tenant shall fail to give Landlord a Revocation Notice (as hereafter defined) on or before June 30, 2001 (the "Extended TermRevocation Date") ), time being of five the essence of all of the foregoing provisions. Except for the amount of Basic Rent (5) years. The Extended Term which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall commence on July 1be applicable to the additional period through which the term shall be extended as aforesaid, 2025, and except that there shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option be no further options to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease nor shall Landlord be obligated to make or pay for any improvements to the Extended Term, Premises nor pay any inducement payments of any kind or nature. If Tenant shall give Landlord a Notice of Intention in the manner and no instrument of renewal need be executed. In within the event that Tenant fails time period provided aforesaid and shall thereafter fail to give such notice to LandlordLandlord a Revocation Notice in the time and manner set forth herein, the Term of the Lease shall automatically terminate be extended to include the Extension Period without the requirement of any further attention on June 30the part of either Landlord or Tenant. Landlord hereby reserves the right, 2025exercisable by Landlord in its sole discretion, and to waive (in writing) any condition precedent set forth in clauses (a), (b), (c) or (d) above. If Tenant shall fail to give Landlord a timely Notice of Intention, Tenant shall have no further option right to extend the Term of this the Lease, it time being agreed that time shall be of the essence in of the giving of such noticeforegoing provisions. The Extended Term shall be on all the terms and conditions Any termination of this Lease, except that Lease shall terminate the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofrights hereby granted Tenant.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Option to Extend. (a) Subject to the terms hereofprovisions of this Section 2.2, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant Lessee shall have the right three (3) consecutive options to extend the Term term of this Lease for one extended term (the "Extended Term") of five (5) yearsyears each. (Such additional terms may hereinafter be called "Option Terms".) Such options shall be personal to United Merchandising Corp., or its Affiliate, as that term is defined in Section 14.2 hereof, and may not be exercised by an assignee or sublessee under the Lease, unless said assignee or sublessee is an Affiliate of United Merchandising Corp., nor may Lessee exercise an option as provided herein for the purpose of subletting or assigning the Demised Premises during such Option Term to any party who is not an Affiliate. The Extended first Option Term shall commence on July 1, 2025, the day following the expiration of the Primary Term and shall end at 11:59 p.m., Boston time, midnight five (5) years thereafter. Each succeeding Option Term shall commence on June 30, 2030the day following the preceding Option Term and end at midnight five (5) years thereafter. Tenant Each option shall exercise such option to extend be exercised by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term Lessor in writing of the Lease for exercise thereof at least twelve (12) months prior to the Extended commencement of each Option Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such which notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such noticeirrevocable by Lessee. The Extended Term All Option Terms shall be on all the same terms and conditions of as otherwise provided in this Lease, except that the Annual Basic Rent for rents payable during the Extended Term Option Terms shall be determined adjusted as set forth below. Notwithstanding the foregoing, in the event an Event of Default (as defined in Section 13.1, hereof) exists under this Lease at the time Lessee exercises its option to extend the term of this Lease, or if an Event of Default pursuant to paragraph (bthe provisions of Section 13.1.1(a) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established hereof exists as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" respective Option Term, then Lessor shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duresshave, in an arms-length lease addition to all of Lessor's other rights and remedies under this Lease, the right to terminate such option and to cancel Lessee's exercise of such option, in which event this Lease shall expire at the expiration of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Primary Term or any then existing Option Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leasecase may be.
Appears in 1 contract
Samples: Lease (Big 5 Sporting Goods Corp)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant Borrower shall have the right option (the “Option”) to extend the Term term of this Lease Note for one extended term (the "Extended Term") a period of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before from the Determination Maturity Date, then Landlord and Tenant each shall give notice such that the extended maturity date (the "Determination NoticeExtended Maturity Date") to the other setting forth their respective determinations of the Fair Market Rental Value), andif applicable, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitratorNovember 1, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market2016. The arbitrator shall conduct such hearings and investigations additional six (6) month is referred to herein as the arbitrator shall deem appropriate and shall, "Option Period". Borrower must give written notice to Lender within thirty (30) days after having been appointedprior to the Maturity Date; provided, choose one however, that in order to exercise the Option, the following additional terms and conditions must be fully complied with: (a) there shall exist no monetary default or event which, with notice or the expiration of any applicable grace period, would be deemed a default or an Event of Default under this Note or under any of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, documents executed in connection with any arbitration under this paragraph (b)herewith, both at the time of notice and at the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph Maturity Date, (b) there shall be final have been no adverse change in the status of Borrower, at the time of notice or at the Maturity Date, (c) all of the representations and binding warranties of Borrower, made herein, in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, Security Instrument or change any of the provisions Other Security Documents shall be true, correct and complete, both at the time of notice and at the Maturity Date, and (d) Borrower shall have no further right to extend the term of this LeaseNote. In the event Borrower does exercise the Option, Borrower must pay Lender a $15,000.00 fee for the Option exercised, which shall be due and payable at the time Borrower provides written notice of its intent to exercise the six (6) month Option. Interest during the Option Period shall be payable monthly on the first day of each month as accrued, at the Applicable Interest Rate. Borrower shall have the right to prepay the whole or any part of this note, at any time during the Option Period, together with accrued and unpaid interest thereon, computed through the last day of the month of prepayment, on thirty (30) days’ prior written notice to Lender. During the Option Period, the Applicable Interest Rate shall be twelve and 00/100 percent (12.00%) per annum.
Appears in 1 contract
Samples: Credit Agreement (TRANS LUX Corp)
Option to Extend. (a) Subject to Provided that at the terms hereof, if time of such exercise (i) during the Term of the Lease there then exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of LESSEE beyond applicable notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant)periods, and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still then in full force and effect (any and all of which conditions are for the benefit ofeffect, and may be waived by, Landlord), Tenant LESSEE shall have the right and option to extend the Term term of this Lease for one two (2) extended term terms of six (6) months each (the "Extended TermTerms") of five (5) years). The Extended Term Terms shall commence on July 1, 2025the day immediately succeeding the expiration date of then current term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the sixth month anniversary of the first day of such Extended Term. Tenant LESSEE shall exercise such option to extend by giving written notice to Landlord LESSOR of its desire to do so not later than June 30sixty (60) days prior to the expiration date of then current term. Provided the conditions of clauses (i) and (ii) of this section shall have been satisfied, 2024. The the giving of such notice by Tenant LESSEE shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant LESSEE fails to give such notice to LandlordLESSOR, the this Lease shall automatically terminate on June 30, 2025at the end of then current term, and Tenant LESSEE shall have no further option to extend the Term of this Lease, it being . It is agreed that time shall be is of the essence in with respect to the giving of such notice. The Extended Term Terms shall be on all the terms and conditions of this Lease, except that (I) upon the Annual exercise of the second (2nd) six (6) month option, the option to extend the Term of this Lease shall be deleted, and (II) the Basic Rent for the Extended Term Terms shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the at Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity)Value. LESSOR shall designate Fair Market Value, to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease ") by written notice to LESSEE within thirty (30) days of the Premises as receipt of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicesnotice from LESSEE. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination DateLESSEE disagrees with such designation, then Landlord and Tenant each shall give notice (the "Determination NoticeDesignation") ), LESSEE shall by written notice, advise LESSOR of such disagreement; otherwise LESSEE shall conclusively be deemed to have agreed to such Designation. In the other setting forth their respective determinations of event that the Fair Market Rental Value, and, subject Parties are unable to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, agree within thirty (30) days after having been appointedLESSOR'S receipt of LESSEE'S notice of disagreement, choose one then each Party shall appoint a reputable, independent appraiser, who is a member of the determinations set forth Member Appraisal Institute of the American Institute of Real Estate Appraisers and who has at least ten (10) years of experience appraising commercial office space in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator Massachusetts. Each appraiser so appointed shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing instructed to determine independently the Fair Market Rental ValueValue and then confer. If the two appraisers are unable to determine a Fair Market Value acceptable to both parties within forty-five (45) days after their appointment, they shall appoint a third appraiser. The arbitrator shall not have the power to add to, modify, or change any of the provisions Designation of this Leaseappraiser shall be considered final.
Appears in 1 contract
Option to Extend. (a) Subject to A. Provided that, at the terms hereoftime of each such exercise, if (i) during this Lease is in full force and effect, and (ii) no Event of Default shall have occurred and be continuing (either at the Term time of exercise or at the commencement of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of TenantExtended Term), and (iiiii) Tenant shall not have assigned the this Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premisesother than any Permitted Transfer (any of which conditions described in clauses (i), (ii), and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, by Landlord at any time in Landlord’s sole discretion), Tenant shall have the right and option to extend the Term of this Lease for one (1) extended term (the "“Extended Term"”) of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024twelve (12) months prior to the expiration date of the Term. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, the this Lease shall automatically terminate on June 30, 2025at the end of the Term, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time . The Extended Term shall be commence on the day immediately succeeding the expiration date of the essence in original Term and shall end on the giving day immediately preceding the fifth (5th) anniversary of such noticethe first day of the Extended Term. The Extended Term shall be on all the terms and conditions of this Lease, except that except: (w) during the Annual Basic Extended Term, Tenant shall have no further option to extend the Term, (x) the Base Rent for the Extended Term shall be determined pursuant to paragraph the greater of (bi) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term in question, taking into account all relevant factors, determined pursuant to Section 40(b) below or (ii) the "Determination Date"). The term "Fair Market Rental Value" shall mean Base Rent in effect during the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease final year of the Lease Term, (y) Landlord shall not be required to furnish any materials or perform any work to prepare the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, for Tenant’s occupancy during the Extended TermTerm 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 Year shall be the applicable calendar or Tax Fiscal Year, as applicable, in which the commencement of the Extended Term occurs.
B. Promptly after receiving Tenant’s Share notice extending the Term of Operating Expenses and Taxes this Lease pursuant to Section 40(a) above, Landlord shall be computed using updated base years, consistent provide Tenant with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon Landlord’s good faith estimate of the Fair Market Rental Value within six (6as defined in Section 40(c) below) of the Premises for the upcoming Extended Term provided that in no event shall Landlord be required to deliver such estimate sooner than eleven (11) months before prior to the Determination Dateexpiration of the Term then in effect. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, and the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, then Landlord and Tenant each shall give either party may submit the determination of the Fair Market Rental Value of the Premises to arbitration by giving notice (the "Determination Notice") to the other setting party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30)-day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS, Inc., or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their respective determinations of the Fair Market Rental Value, and, subject Value of the Premises to the provisions of paragraph third arbitrator within five (c5) below, either party may apply to the then president Business Days of the Real Estate Finance Association appointment of the Greater Boston Real Estate Board, third arbitrator and the third arbitrator shall render his or any successor thereto, for her decision within ten (10) days after receipt of both of the designation of an arbitrator satisfactory to both parties to render a final determination other two determinations of the Fair Market Rental ValueValue of the Premises. That there The third arbitrator’s decision shall be only one arbitrator, binding on both Landlord and Tenant. All arbitrators shall be commercial real estate brokers who shall are independent from the parties and who have had at least ten (10) years’ experience as a real estate broker or appraiser in leases of comparable premises in comparable buildings in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as area in which the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and TenantPremises are located. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of the third arbitrator shall be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and as of the commencement of the Extended Term the amount of the Base 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 the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Base Rent, such overpayment shall be 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 Base Rent, Tenant shall pay any such arbitration. The determination rendered amounts to Landlord promptly following such determination.
C. As used in accordance with this Lease, the provisions of this paragraph (b) shall be final and binding in fixing the term “Fair Market Rental Value. The arbitrator ” shall mean the fixed rents that landlords of comparable first class buildings in the 128 West submarket have agreed to accept, and sophisticated nonaffiliated tenants of comparable buildings have agreed to pay, in current arms-length, nonequity (i.e., not have being offered equity in the power building), transactions for comparable space (in terms of condition, improvements, floor location and floor height) of a comparable size, for a term equal to add to, modify, or change any of the provisions of this Leaseapplicable Extended Term and taking into account all other relevant factors.
Appears in 1 contract
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of each such exercise, if (i) during the Term of the this Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, is in full force and the expiration of all cure rights permitted, would constitute a Default of Tenant)effect, and (ii) Tenant no Event of Default shall not have assigned occurred and be continuing (either at the Lease time of exercise or sublet all or any portion at the commencement of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlordan Extended Term), Tenant shall have the right and option to extend the Term of this Lease for one two (2) extended term terms (collectively, the "Extended TermTerms") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years each by giving written notice to Landlord not later that twelve (12) months (nor earlier than June 30, 2024eighteen (18) months) prior to the expiration date of the Term then in effect. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the applicable Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, the this Lease shall automatically terminate on June 30, 2025at the end of the Term then in effect, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time . Each Extended Term shall be commence on the date immediately succeeding the expiration date of the essence in original Term of the giving preceding Extended Term, as the case may be, and shall end on the day immediately preceding the fifth anniversary of the first day of such noticeExtended Term. The Extended Term shall be on all the terms and conditions of this Lease, except that except: (i) during the Annual second Extended Term, Tenant shall have no further option to extend the Term, and (ii) the Basic Rent rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term Terms shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term in question, taking into account all relevant factors, determined pursuant to paragraph (b), but in no event shall the "Determination Date"). The term "Fair Market Rental Value" shall mean Basic Rent for the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease Extended Term be less than the Basic Rent at the expiration of the Premises as original or Extended Term immediately preceding the commencement of the Determination Date. For purposes Extended Term in question.
(b) Within thirty (30) days after receiving Tenant's notice extending the Term of determining the Fair Market Rental Valuethis Lease pursuant to paragraph (a) above, during the Extended Term, the Tenant’s Share Landlord shall provide Tenant with Landlord's good faith estimate of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before of the Determination DatePremises for the upcoming Extended Term based upon rents being paid by tenants entering into leases for comparable space similar in size, then Landlord build-out, amenities and Tenant each shall give notice (term in the "Determination Notice") Waltham area, not including the value of any improvements made to the other setting forth their respective determinations Premises by Tenant at Tenant's sole cost and expense. If Tenant is unwilling to accept Landlord's estimate of the Fair Market Rental ValueValue as set forth in Landlord's notice referred to above, andand the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, subject then Tenant may rescind its exercise of the option to extend by written notice delivered to Landlord within ten (10) days after the provisions expiration of paragraph such thirty (c) below30)-day period. If Tenant does not so exercise its right to rescind, then either party may apply to submit the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental ValueValue of the Premises to arbitration by giving notice to the other party naming the initiation party's arbitrator within ten (10) days after the expiration of such ten (10)-day period. That there Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party's arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be only one determined by the initiating party's arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party's notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS/ENDISPUTE, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. Within fifteen (15) days after the appointment of the third arbitrator, the three arbitrators shall determine the Fair Market Rental Value of the Premises and give notice thereof to the parties hereto, and the arbitrators' determination shall be binding upon the parties. All arbitrators shall be appraisers or other qualified real estate professionals who shall are independent from the parties who have had at least ten (10) years’ experience as a years commercial real estate broker or appraiser experience in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenantgreater Boston area. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) third arbitrator shall be final and binding in fixing shared equally by the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseparties.
Appears in 1 contract
Samples: Lease Agreement (Repligen Corp)
Option to Extend. So long as:
(a) Subject the Tenant is not in uncured material default under the terms of this Lease;
(b) the Lease has not previously been terminated;
(c) the Tenant is itself occupying the entire Premises; and
(d) the Tenant gives to the terms hereof, if (i) during Landlord written notice of its intention to extend the Term of the Lease there exists no Default of Tenant hereunder not more than twelve (or any event or circumstance which, with 12) months nor less than nine (9) months prior to the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion termination of the Premisescurrent Term, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), The Tenant shall have the right two (2) options to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the five (5) year period(s) (each, an “Extended Term”) on either:
i. the whole of the Premises;
ii. the First (1st) Floor and Second (2nd) Floor only;
iii. the First (1st) Floor, Second (2nd) Floor and no instrument of renewal need be executedSuite 330 only; and
iv. In the event that Tenant fails to give such notice to LandlordFirst (1st) Floor, the Lease shall automatically terminate on June 30Second (2nd) Floor, 2025, Suite 330 and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time Suite 350 only; and shall be of upon the essence in the giving of such notice. The Extended Term shall be on all the same terms and conditions of this Lease, as contained in the Lease except as otherwise expressly provided herein and except that 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 Annual rates for any storage space and/or parking spaces used by Tenant shall be the Landlord's then applicable rates and annual Basic Rent shall be equal to the greater of:
v. the annual Basic Rent payable during the last prior year of the Term; or
vi. the fair market annual Basic Rent for the Premises as agreed upon by the parties having regard to the finished condition of the Premises at the time of extension but excluding the value of any improvements that have been constructed at the expense of the Tenant and having regard to then applicable basic rental levels for similar premises for a similar term in the Building. The parties shall make all reasonable efforts to reach agreement as to the fair market annual Basic Rent for the extension term not less than three (3) months from the Date of the Tenant’s exercise of such Option to Extend, and failing such agreement, fair market annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that by a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an single arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the Commercial Arbitration Act (British Columbia). If the Landlord so elects, the Tenant shall execute the Landlord's then current form of lease amending agreement or lease, as determined by the landlord, to give effect to such extension of the Term. Schedule “C” The Tenant shall observe the following Rules and Regulations (as amended, modified or supplemented from time to time by the Landlord as provided in the Lease):
1. The Tenant shall not use or permit the use of the Premises in such manner as to create any objectionable noises, odours or other nuisance or hazard, or breach any applicable provisions of this paragraph municipal by‑law or other lawful requirements applicable thereto or any requirements of the Landlord's insurers, shall not permit the Premises to be used for cooking (bexcept with the Landlord's prior written consent) or for sleeping, shall be final keep the Premises tidy and binding free from rubbish, shall deposit rubbish in fixing receptacles which are either designated or clearly intended for waste and shall leave the Fair Market Rental ValuePremises at the end of each business day in a condition such as to facilitate the performance of the Landlord's janitorial services in the Premises, if applicable.
2. The arbitrator Tenant shall not have abuse, misuse or damage the power to add to, modify, Premises or change any of the provisions improvements or facilities therein, and in particular shall not deposit rubbish in any plumbing apparatus or use it for other than purposes for which it is intended, and shall not deface or mark any walls or other parts of this Leasethe Premises.
3. The Tenant shall not perform, patronize or (to the extent under its control) permit any canvassing, soliciting or peddling in the Building.
4. The entrances, lobbies, elevators, staircases and other facilities of the Building are for use only for access to the Premises and other parts of the Building and the Tenant shall not obstruct or misuse such facilities or permit them to be obstructed or misused by its agents, employees, invitees or others under its control.
5. No safe or heavy office equipment shall be moved into or about the Building by or for the Tenant unless the consent of the Landlord is first obtained and unless all due care is taken. Such equipment shall be moved upon the appropriate steelbearing plates, skids or platforms and subject to the Landlord's direction, and at such times, by such means and by such persons as the Landlord shall have approved. No furniture, freight or bulky matter of any description shall be moved in or out of the Premises or carried in the elevators except during such hours as the Landlord shall have approved. Hand trucks and similar appliances shall be equipped with rubber tires and other safeguards approved by the Landlord, and shall be used only by prior arrangement with the Landlord.
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Option to Extend. (a) Subject to the terms hereof, if (i) during Tenant shall have two options (each an “Option”) to extend the Term of the Lease there exists for consecutive and successive periods of five (5) years (the “Option Period”) each, subject to the following conditions: (i) at the time an Option is exercised and as of the commencement of an Option Period, this Lease shall be in full force and effect and no Event of Default of Tenant hereunder then exists; (or any event or circumstance which, with ii) an Option must be exercised by notice given to Landlord not later than nine (9) months prior to the giving of notice or the passage of time, and the then-scheduled expiration of all cure rights permittedthe Term, would constitute a Default which notice shall be irrevocable regardless of Tenant), the fact that Base Rent for the Option Period has not yet been finally determined; and (iiiii) Tenant shall not have assigned the Lease or sublet substantially all or any portion of the Premises, and then actually occupies Premises for substantially the entire Premises, and (iii) the Lease is still in full force and effect (any and all remainder of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term other than in a transaction that does not require Landlord’s consent.
(the "Extended Term"ii) of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlordan Option is timely and effectively exercised, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on extended for the Option Period upon all of the terms and conditions of this the Lease; provided, except however, that (1) the Annual Basic Base Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for during the first year of the Extended Term Option Period shall be the Fair Market Rental Value then fair market rental value of the Premises and Base Rent during the Option Period shall increase by three percent (exclusive 3%) as of the cost of supplying Tenant electricity), to be established as each anniversary of the commencement of the Extended Option Period; (2) upon the exercise by Tenant of the first Option, if at all, Tenant will have only one (1) remaining Option, and upon Tenant’s exercise of the second Option, if at all, Tenant will have no further remaining rights or options to extend the Term; (3) the Work Letter attached hereto and any allowances and other or inducements provided by Landlord in connection with the original Term (or any previous Option Period), will not apply with respect to the subject Option Period; and (4) Operating Expenses shall not include the amortization of any capital expenditures incurred by Landlord prior to the commencement of each Option Period.
(iii) For the purposes hereof, the fair market rental value of the Premises for the applicable Option Period shall be the monthly rental rate per square foot of rentable area then prevailing for comparable space in the Oakland Metropolitan area (excluding downtown Oakland), multiplied by the Rentable Area of the Premises. Not later than eight (8) months prior to the commencement of the Option Period, Landlord shall give Tenant Landlord’s determination of fair market rental value that takes into account all of the factors required to be considered in the determination of fair market rental value in subsection (iv) below (the "Determination DateFMRV Notice"). The term "Fair Market Rental Value" shall mean Tenant may dispute Landlord’s determination of fair rental value by notice to Landlord given within fifteen (15) days following the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duressgiving of Landlord’s determination, in an arms-length lease which event the parties shall negotiate in good faith to resolve the dispute. If such dispute is not resolved by negotiation between the parties within thirty (30) days following delivery of Tenant’s notice of dispute of Landlord’s determination of fair market rental value, then fair market rental value shall be determined by appraisal under subsection (iv) below and from the commencement of the Premises as Option Period, Tenant shall pay Base Rent when due based upon the Base Rent in effect at the end of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended initial Term, subject to retroactive adjustment between the Tenant’s Share parties if the determination by appraisal is different from the Base Rent in effect at the end of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicesthe initial Term. If Tenant does not timely dispute Landlord’s determination of the fair market rental, then Tenant will be deemed to have accepted the fair market rental value as set forth in the FMRV Notice.
(iv) When fair market rental value is to be determined by appraisal, within fifteen (15) days after the expiration of the 30-day negotiation period, Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Dateeach appoint as an appraiser, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser with at least fifteen (15) years of experience in appraising real property in the Natick/Speen Street/Route 30 office Alameda and Oakland area, and give written notice of such appointment to the other. If either Landlord or Tenant shall fail to appoint an appraiser within such 15-day period, then the single appraiser appointed shall be the sole appraiser and shall determine the fair market rental marketvalue of the Premises. The arbitrator shall conduct In the event each party appoints an appraiser, such hearings and investigations as the arbitrator shall deem appropriate and appraisers shall, within thirty (30) days after having been the appointment of the last of them to be appointed, choose one complete their independent determinations of fair market rental value and furnish the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon same to Landlord and Tenant. Each party In making the determination of fair market rental value of the Premises, such appraisers shall pay its own counsel fees base such appraisal on the fair market base rent then being charged to non-renewing, non-equity tenants in comparable buildings in the Oakland Metropolitan area of comparable age, construction, capital improvements, size, location and expensesquality for leases with terms equal to the Option Period and shall take into consideration the creditworthiness and financial strength of the tenant, any “base year” or “expense stop” provisions applicable to such value, and the value of market concessions. The determination of fair market rental value will account for the lack of concessions under this Lease as to the Option Period. The concessions to be considered in adjusting fair market rental value shall include (a) rental abatement concessions, if any, being granted such tenants in connection with any arbitration under this paragraph (b)such comparable space, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) tenant improvements - 3 - or allowances provided or to be provided for such comparable space, taking into account the value, if any, of the existing improvements in the subject space, such value to be based on the age, condition, design, quality of finishes and layout of the improvements, and (c) other reasonable monetary concessions being granted such tenants in connection with such comparable space. If any concessions are paid in cash, such as moving allowances or tenant improvement reimbursements, Tenant shall have the option of receiving the payment or concession in cash or receiving the benefit of the relevant concession through an adjustment to the net effective Base Rent that shall reflect the reasonable present value of the relevant concession. Notwithstanding the foregoing, the determination of fair market rental value of the Premises shall exclude the value of the Improvements (as defined in the Work Letter) and any Alterations to the extent paid for by Tenant. If the aggregate Base Rent over the Option Period under the lower appraisal varies from the higher appraisal by five percent (5%) or less of the total Base Rent payable over the Option Period under the lower appraisal, the fair market rental value shall be final and binding in fixing the Fair Market Rental Valueaverage of the two valuations. The arbitrator appraisal shall not provide for any interim increases in Base Rent during the Option Period. If the total Base Rent during the Option Period under the lower appraisal varies from the higher appraisal by more than five percent (5%), the two appraisers shall, within thirty (30) days after submission of the last appraisal report, appoint an independent third appraiser who shall be similarly qualified and such appraiser (i.e. the individual, in contrast to his or her employer) shall not have been previously employed by Landlord or Tenant. If the power two appraisers shall be unable to add to, modify, agree on the selection of a third appraiser in a timely manner then either Landlord or change any Tenant may request such appointment by the presiding judge of the provisions Superior Court of Alameda County. The third appraiser shall, within forty-five (45) days after appointment, select which of the two appraisals most closely represents the third appraiser’s determination of fair market rental value and submit that determination to Landlord and Tenant which shall be deemed the fair market rental value of the Premises. All fees and costs incurred in connection with the determination of fair market rental value by the third appraiser, if any, shall be paid one-half by Landlord and one-half by Tenant. Following the determination of the Base Rent during the Option Period, either by the process outlined above or by agreement, and prior to the commencement of the Option Period, Tenant and Landlord shall execute an amendment to this LeaseLease extending the Term by the Option Period and establishing the Base Rent during the Option Period.
Appears in 1 contract
Samples: Lease Agreement (Exelixis, Inc.)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all beyond applicable cure rights permitted, would constitute a Default of Tenant), and periods; (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still in full force and effect and Tenant actually occupies the entire Premises; and (iii) Tenant shall not have assigned this Lease or sublet any and or all of which conditions are for the benefit ofPremises, and may be waived by, Landlord)(iv) Tenant shall not have exercised its option to terminate this Lease, Tenant shall have the right to extend the Term of this Lease as to the Premises originally leased hereunder for one extended term (the "“Extended Term"”) of five (5) years. The Extended Term shall commence on July 1, 2025the day immediately following the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the fifth anniversary of the first day of the Extended Term. Tenant shall exercise such option to extend by giving Landlord written notice of its desire to Landlord do so, not later than June 30six (6) months prior to the expiration of the Initial Term, 2024it being agreed that time shall be of the essence with respect to the giving of such notice. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of this Lease for the Extended Term of this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to LandlordLandlord within such time, the Term of this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant shall have no further right or option to extend the Term of this Lease, it time being agreed that time shall be of the essence in the giving of such noticeessence. The Extended Term shall be on all the terms and conditions of this Lease, except that that: (i) Landlord shall have no obligation to perform or pay for any construction or improvements to the Annual Premises, with respect to the Extended Term unless otherwise expressly agreed at the time; and (ii) the Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofin accordance with Paragraph 36(b).
(b) The Annual Basic Rent for the first year of the Extended Term shall be at a rental rate equal to the Fair Market Rental Value (in the North Suburban Boston area) of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (Term, determined without regard to Tenant’s right to extend, as agreed by the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent parties, it being understood that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes Additional Rent shall continue to be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered calculated in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions Paragraph 7 of this Lease.
Appears in 1 contract
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of each such exercise, if (i) during the Term of the this Lease there exists is in full force and effect, (ii) no Default of Tenant hereunder shall have occurred and be continuing (either at the time of exercise or any event or circumstance which, with at the giving commencement of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenantan Extended Term), and (iiiii) Tenant shall not have assigned the this Lease or vacated or sublet all or any portion of more than 20,000 rentable square feet in the Premises, and then actually occupies the entire Premisesother than in connection with a transfer for which Landlord’s consent is not required under Article VI (any of which conditions described in clauses (i), (ii), and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, by Landlord at any time in Landlord’s sole discretion), Tenant shall have the right and option to extend the Term of this Lease with respect to either the entire Premises, or only the portion of the Premises on the second floor, or only the portion of the Premises on the third floor, for one two extended term terms (the "each an “Extended Term"”) of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years each by giving written notice to Landlord not later than June 30, 2024twelve (12) months prior to the expiration date of the then current Term. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the applicable Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, or if Tenant shall elect to extend the Term solely with respect to the second floor space or the third floor space, then this Lease shall automatically terminate on June 30with respect to the remainder of the Premises at the end of the Initial Term, 2025or the first Extended Term, as applicable, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be Lease with respect to such portion of the essence in Premises. Each Extended Term shall commence on the giving day immediately succeeding the expiration date of such noticethe Initial Term, or the expiration of the first Extended Term, as applicable, and shall end on the day immediately preceding the fifth (5th) anniversary of the first day of the Extended Term. The Extended Term Terms shall be on all the terms and conditions of this Lease, except that except: (i) during the Annual second Extended Term, Tenant shall have no further option to extend the Term, (ii) the Basic Rent for the each Extended Term shall be determined pursuant to paragraph ninety-five percent (b95%) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term, taking into account all relevant factors, determined pursuant to paragraph (b) below; and (iii) if Tenant shall elect in such notice of extension to extend the Term for only the second floor space or the third floor space, the Premises thereafter shall solely refer to such space.
(b) Promptly after receiving Tenant’s notice extending the "Determination Date"). The term "Fair Market Rental Value" shall mean Term of this Lease pursuant to paragraph (a) above, but in no event sooner than eleven months prior to the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease end of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended then current Term, the TenantLandlord shall provide Tenant with Landlord’s Share good faith estimate of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before of the Determination DatePremises for the upcoming Extended Term based upon rents being paid by tenants entering into leases for first-class office similar in size, then Landlord build-out, amenities and term in the Medford/Charlestown area. If Tenant each shall give notice (the "Determination Notice") is unwilling to the other setting forth their respective determinations accept Landlord’s estimate of the Fair Market Rental ValueValue as set forth in Landlord’s notice referred to above, andand the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, subject to the provisions of paragraph (c) below, then either party may apply to submit the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value of the Premises to arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, then the two arbitrators thus appointed shall make their own determination of Fair Market Rental Value and shall meet and confer in an effort to reconcile their respective determinations. If, within thirty (30) days after the appointment of the second arbitrator, the two arbitrators have not reached agreement, and if the difference between the two (2) determinations is less than ten percent (10%), then the average of the two determinations shall be the Fair Market Rental Value. That there If, however, the difference between the two (2) determinations is ten percent (10%) or more, then the two arbitrators shall, within ten (10) days after the expiration of such thirty (30) day period, appoint a third arbitrator; in the event the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the American Arbitration Association, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. In such event, the third arbitrator shall conduct its own independent investigation of the applicable Fair Market Rental Value within fifteen (15) days of his/her appointment; neither Landlord’s arbitrator nor Tenant’s arbitrator shall notify the third arbitrator of its determination. After the third arbitrator has completed its determination, the third arbitrator shall notify Landlord and Tenant of the date on which said arbitrator will discloses its determination, which date shall be only one at least five (5) days after the giving of such notice. Such disclosure shall take place in Landlord’s office unless otherwise mutually agreed by the parties. In such case, the Fair Market Rental Value shall be the rent proposed by either Landlord’s arbitrator or Tenant’s arbitrator, whichever value is closer to the determination of the third arbitrator; if the two are equidistant from the third arbitrator, the Fair Market Rental Value shall be equal to the third arbitrator’s determination. All arbitrators shall be appraisers or other qualified real estate professionals who shall are independent from the parties who have had at least ten (10) years’ experience as a years commercial real estate broker or appraiser experience in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenantgreater Boston area. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) third arbitrator shall be final and binding in fixing shared equally by the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseparties.
Appears in 1 contract
Option to Extend. (a) Subject to the terms hereof, if Provided that (i) during no Event of Default shall have occurred in the Term of past twelve (12) months preceding the Lease there exists no Default of date on which Tenant hereunder (or any event or circumstance which, with gives timely notice that it is exercising its option to extend the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant)Term, and (ii) there then exists no uncured Event of Default by Tenant shall not have assigned under this Lease at the Lease or sublet all or any portion time of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord)Tenant’s exercise, Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term for that period of time which, when added to the initial Term of this Lease, shall cause the overall Term of this Lease to be twenty-nine (29) years and eleven (11) months (the “Extension Term”), exercisable by giving Landlord prior written notice thereof at least eighteen (18) months in advance of the Expiration Date, it being agreed that time shall be is of the essence in essence. For the giving avoidance of such noticedoubt, the right to extend the term hereunder shall inure to the benefit of any Permitted Transferee who is the legal successor to, or the assignee of, all of Tenant’s rights under this Lease. The Extended Extension Term shall be on all under the same terms and conditions of as provided in this Lease, Lease except that the Annual Basic Rent for the Extended as follows:
(a) The Extension Term shall begin on the Expiration Date, and thereafter the Expiration Date shall be determined pursuant deemed to paragraph (b) hereof.be the last day of the Extension Term;
(b) All references to the Term in this Lease shall be deemed to mean the Term as extended pursuant to this Section 29; and
(c) The Minimum Annual Basic Rent payable during the Extension Term shall be the Minimum Annual Rent for the last Lease Year of the initial Term, increased (commencing on the first year of the Extended Term shall be Extension Term) by the Fair Market Rental Value same annual percentage increases for Lease Years 10-20 of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended initial Term (the "Determination Date"as determined pursuant to Section 1(m) above). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Option to Extend. (a) Subject to So long as Tenant is not in default hereunder after applicable notice and grace periods at the terms hereof, if (i) during time of giving notice or at the Term commencement of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of timeExtended Term, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant so long as this Lease shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still be in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord)effect, Tenant shall have the right option to extend the Term of this Lease for one extended term (the "Extended TermOptions to Extend") for four (4) extended terms of five (5) yearsyears each (the "Extended Terms"). The Each Extended Term shall commence on July 1, 2025, and shall immediately following the end at 11:59 p.m., Boston time, on June 30, 2030of the then existing Term. Tenant shall may exercise such its option to extend for any Extended Term by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend at any time during the then existing Term of the Lease for Lease, but no later than twelve (12) months prior to the end of the then existing Term. Notwithstanding the preceding sentence, if notice is given earlier than twelve (12) months prior to the end of the Term, Market Rent shall be determined as of the date twelve (12) months prior to the end of the existing Term. All terms and conditions applicable during the Term shall apply during any Extended Term, except for Yearly Fixed Rent which shall be as provided below, and no instrument the number of renewal need remaining options to extend under this Lease pursuant to this Section 3.3 shall be executedreduced by the number of options to extend that have already been exercised by Tenant hereunder. In the event that If Tenant fails to give such notice to Landlordexercising its option for any Extended Term within the time provided above, the this Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend expire at the Term of this Lease, it being agreed that time shall be end of the essence in the giving of such noticethen existing Term (unless sooner terminated as provided herein). The Yearly Fixed Rent during each Extended Term shall be on all adjusted to be the terms and conditions of this Leasethen relevant Market Rent, except that the Annual Basic Rent for the Extended Term shall such rent to be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent accordance with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, andExhibit B attached hereto, subject to annual increases as set forth in Section 6.1 hereof. Notwithstanding anything herein to the provisions contrary, it is understood and agreed that the Yearly Fixed Rent during only the first and second Extended Terms shall in no event be less than the Yearly Fixed Rent at the time of paragraph (c) below, either party may the expiration of the then current Term. This limitation shall not apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings third and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, fourth Extended Terms if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseexercised.
Appears in 1 contract
Samples: Lease Agreement (American Realty Capital Trust, Inc.)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term Provided that Tenant shall have well and faithfully performed in a timely manner all of the Lease there exists no Default of Tenant hereunder (or any event or circumstance whichterms, with the giving of notice or the passage of time, covenants and the expiration of all cure rights permitted, would constitute a Default of conditions on Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may 's part to be waived by, Landlord)performed under this Lease, Tenant shall have the right an option to extend the Term term of this Lease for one additional period of five (5) years (the "Option to Extend"). The Option to Extend shall be exercised only by written notice from Tenant received by Landlord no more than eight (8) months and no less than six (6) months prior to the expiration of the Initial Term ("Notice of Option to Extend"), failing which notice Tenant's right to extend the term of this Lease shall be null and void. The Notice of Option to Extend shall be effective only if given in the timely manner described and provided Tenant is not in default under this Lease beyond applicable grace and cure periods either on the date of the Notice of Option to Extend or on the date of expiration of the Initial Term.. Any extended term of this Lease shall be on the terms and conditions as the Initial Term, except as otherwise expressly provided herein. Once the term of this Lease is duly extended any reference herein to the Term hereof shall mean the term of this Lease as extended (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof).
(b) The Annual Basic Rent as defined in Section 1.2 hereof for the Extended Term of this Lease shall be the then fair market value figure for the Basic Rent for the first Premises during any such extended term as determined pursuant to this Section 14.29(b). Notwithstanding anything to the contrary contained herein, in no event shall the Basic Rent for any given lease year of the Extended Term shall be less than the Fair Market Rental Value Basic Rent for any previous year of the Premises Term as extended. Within ten (exclusive 10) days of its receipt of the cost Notice of supplying Option to Extend, Landlord shall deliver Tenant electricity), to be established as of the commencement of the Extended Term notice (the "Determination DateLandlord's Rental Notice"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease ) of Landlord's estimate of the fair market value for the Basic Rent for the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during for the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to cannot agree upon on such fair market value within fourteen (14) days of Tenant's receipt of the Fair Market Landlord Rental Value within six (6) months before the Determination DateNotice, then Landlord and Tenant each shall give notice (the "Determination NoticeLandlord's Rental Notice Date") to ), the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty twenty-eight (3028) days after having been appointedthe Landlord's Rental Notice. Date, choose one select a single appraiser who will determine such fair market value. If the parties cannot agree on a single appraiser, then each party will select an appraiser within said twenty-eight (28) days after the Landlord's Rental Notice Date and such two appraisers will select a third appraiser within seven (7) days of the determinations set forth in either Landlord’s or Tenant’s Determination Noticedate of the selection of such two appraisers. The appraisers so selected shall all be members of the Institute of Real Estate Appraisers, and that choice in the case of the third appraiser chosen by the arbitrator other two appraisers, shall not have acted in any capacity for either Landlord or Tenant within five (5) years of such appraiser's selection. The three appraisers shall render their decision as to their estimate of the fair market value of the Premises and a decision by the majority of the appraisers shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and The cost of the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) foregoing appraisers shall be final borne equally by Landlord and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this LeaseTenant.
Appears in 1 contract
Samples: Lease (Cytation Com Inc)
Option to Extend. If the LESSEE is not then in default, LESSOR does hereby grant to LESSEE the option to extend this Lease for 39 -39- two (a2) Subject to additional five (5) year term, commencing on the terms hereof, if (i) during the Term expiration of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, initial term and the expiration of all cure rights permittedthe first extended term, would constitute a Default as the case may be, upon the same terms and conditions as herein contained except the annual base rent set forth in paragraph 4 hereof shall be at the rate set forth below. The annual rent for the first extended term shall be the sum of Tenantthe following:
(i) $317,484.00 per year (calculated as 24,268 square feet of space on the first and second floors at $13.00 per square foot plus 200 square feet of space in the basement at $10.00 per square foot), and ; plus
(ii) Tenant shall not have assigned the Lease or sublet all or any portion annual fair value of the Premisesparking spaces made available to LESSEE, all to be reasonably determine by LESSOR ("Outdoor Parking"); it being expressly understood and then actually occupies agreed by the entire Premises, and parties that the first five (iii5) the Lease is still in full force and effect (any and all of which conditions are spaces taken by LESSEE shall be at no cost or charge to LESSEE. The annual rent for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one second extended term (the "Second Extended Term") shall be adjusted at the commencement of the Second Extended Term and shall be ninety (90k) percent of the then fair market rental (the "Market Rent") of the Leased Premises plus the annual fair value of LESSEE's Outdoor Parking spaces as reasonably determined by LESSOR; it being expressly understood and agreed by the parties that the first five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend spaces taken by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time LESSEE shall be of the essence in the giving of such noticeat no cost or charge to LESSEE. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Market Rent for the Extended Term shall be determined pursuant as set forth on Exhibit E to paragraph (b) hereof.
(b) The Annual Basic Rent this Lease. 40 -40- Notwithstanding the foregoing, in no event shall the annual base rent for the first second extended term be less than the annual base rent for the last year of the Extended Term first extended term. The option shall be exercised by written notice from LESSEE and received by LESSOR at least four (4) months prior to the Fair Market Rental Value expiration of the Premises (exclusive of initial term or the cost of supplying Tenant electricity)first extended term, to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leasecase may be.
Appears in 1 contract
Samples: Lease Agreement (Leukosite Inc)
Option to Extend. (a) Subject to A. Provided that at the terms hereof, if time of such exercise (i) during the Term of the Lease there then exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of LESSEE beyond applicable notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant)periods, and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still then in full force and effect (any and all of which conditions are for the benefit ofeffect, and may be waived by, Landlord), Tenant LESSEE shall have the right and option to extend the Initial Term of this Lease for one extended term Spaces A and B for two (the "Extended Term"2) successive periods of five (5) yearsyears each (each, an "AB Extended Term"). The first AB Extended Term shall commence on July 1, 2025the day immediately succeeding the expiration date of the Initial Term for Spaces A and B, and shall end at 11:59 p.m.on the day immediately preceding the fifth anniversary of the first day of such AB Extended Term, Boston timeand the second AB Extended Term shall commence on the day immediately succeeding the expiration date of the first AB Extended Term, and shall end on June 30, 2030the day immediately preceding the fifth anniversary of the first day of such second AB Extended Term. Tenant LESSEE shall exercise such option options to extend by giving written notice to Landlord LESSOR of its desire to do so not later than June 30twelve (12) months prior to the expiration date of the Initial Term for Spaces A and B or the first AB Extended Term, 2024as the case may be. The Provided the conditions of clauses (i) and (ii) of this Section shall have been satisfied, the giving of such notice by Tenant LESSEE shall automatically and irrevocably extend the Term of the Lease for Spaces A and B for the particular AB Extended Term, and no instrument of renewal need be executed. In the event that Tenant LESSEE fails to give such notice to LandlordLESSOR, the this Lease shall automatically terminate on June 30at the end of the Initial Term for Spaces A and B or the first AB Extended Term, 2025as the case may be, and Tenant LESSEE shall have no further option to extend the Term of this Lease, it being for Spaces A and B. It is agreed that time shall be is of the essence in with respect to the giving of such notice. The AB Extended Term Terms shall be on all the terms and conditions of this Lease, except that (I) the Annual option to extend the Term for Spaces A and B as set forth in this Section shall be deleted (except that the option to exercise the second AB Extended Term shall continue to be effective in accordance with this Section during the first AB Extended Term), (II) the Basic Rent for the AB Extended Terms shall be at 95% of fair market value as designated by LESSOR by written notice to LESSEE within sixty (60) days of receipt of notice from LESSEE and (III) Base Operating Expenses and Base Taxes shall be calendar year 2014 and fiscal year 2015, respectively, for the first AB Extended Term, and calendar year 2019 and fiscal year 2020, respectively, for the second AB Extended Term. If LESSEE disagrees with such designation of fair market value (the "Designation"), LESSEE shall by written notice, advise LESSOR of such disagreement; otherwise LESSEE shall conclusively be deemed to have agreed to such Designation.
B. Provided that at the time of such exercise (i) there then exists no Default of LESSEE beyond applicable notice and cure periods, and (ii) this Lease is then in full force and effect, LESSEE shall have the right and option to extend the Initial Term for Space C for three (3) successive periods of five (5) years each (each, a "C Extended Term"). The AB Extended Terms and the C Extended Terms are sometimes referred to herein individually or collectively as an "Extended Term" or the "Extended Terms". The first C Extended Term shall commence on the day immediately succeeding the expiration date of the Initial Term for Space C, and shall end on the day immediately preceding the fifth anniversary of the first day of such C Extended Term. The second C Extended Term shall commence on the day immediately succeeding the expiration date of the first C Extended Term, and shall end on the day immediately preceding the fifth anniversary of the first day of such second C Extended Term. The third C Extended Term shall commence on the day immediately succeeding the expiration date of the second C Extended Term, and shall end on the day immediately preceding the fifth anniversary of the first day of such third C Extended Term. LESSEE shall exercise such options to extend by giving written notice to LESSOR of its desire to do so not later than twelve (12) months prior to the expiration date of the Initial Term for Space C or the first or second C Extended Term, as the case may be. Provided the conditions of clauses (i) and (ii) of this Section shall have been satisfied, the giving of such notice by LESSEE shall automatically extend the Term for Space C for the particular C Extended Term, and no instrument of renewal need be determined pursuant executed. In the event that LESSEE fails to paragraph give such notice to LESSOR, this Lease shall automatically terminate at the end of the Initial Term for Space C or the first or second C Extended Term, as the case may be, and LESSEE shall have no further option to extend the Term for Space C. It is agreed that time is of the essence with respect to the giving of such notice. The C Extended Terms shall -17- be on all the terms and conditions of this Lease, except that (bI) hereof.
the option to extend the Term for Space C as set forth in this Section shall be deleted (bexcept that the option to exercise the second and third C Extended Terms shall continue to be effective in accordance with this Section during the first and second C Extended Terms, respectively), (II) The Annual the Basic Rent for the first year of the C Extended Term Terms shall be at 95% of fair market value as designated by LESSOR by written notice to LESSEE within sixty (60) days of receipt of notice from LESSEE and (III) Base Operating Expenses and Base Taxes shall be calendar year 2009 and fiscal year 2010, respectively, for the Fair Market Rental Value first C Extended Term, calendar year 2014 and fiscal year 2015, respectively, for the second C Extended Term, and calendar year 2019 and fiscal year 2020, respectively, for the third C Extended Term. If LESSEE disagrees with such designation of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term fair market value (the "Determination DateDesignation"). The term "Fair Market Rental Value" , LESSEE shall mean by written notice, advise LESSOR of such disagreement; otherwise LESSEE shall conclusively be deemed to have agreed to such Designation.
C. In the annual fixed rent event that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail parties hereto are unable to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointedLESSOR'S receipt of LESSEE'S notice of disagreement, choose one then each Party shall appoint a reputable, independent appraiser, who is a member of the determinations set forth Member Appraisal Institute of the American Institute of Real Estate Appraisers and who has at least ten (10) years of experience appraising commercial office space in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator Massachusetts. Each appraiser so appointed shall be binding upon Landlord instructed to determine independently the fair market value and Tenantthen confer. Each party If the two appraisers are unable to determine a fair market value acceptable to both parties within forty-five (45) days after their appointment, they shall pay its own counsel fees appoint a third appraiser and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitrationdeliver to said third appraiser their final fair market value calculations. The determination rendered in accordance with third appraiser shall select the provisions calculation that it believes is the closest to the then fair market value of the Premises. The Designation of this paragraph (b) appraiser shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseconsidered final.
Appears in 1 contract
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of each such exercise, if (i) during the Term of the this Lease there exists is in full force and effect, (ii) no Default of Tenant hereunder shall have occurred and be continuing (either at the time of exercise or any event or circumstance which, with at the giving commencement of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenantan Extended Term), and (iiiii) Tenant shall not have assigned the this Lease or vacated or sublet all or any portion of more than 20,000 rentable square feet in the Premises, and then actually occupies the entire Premisesother than in connection with a transfer for which Landlord's consent is not required under Article VI (any of which conditions described in clauses (i), (ii), and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, by Landlord at any time in Landlord's sole discretion), Tenant shall have the right and option to extend the Term of this Lease with respect to either the entire Premises, or only the portion of the Premises on the second floor, or only the portion of the Premises on the third floor, for one two extended term terms (the each an "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend years each by giving written notice to Landlord not later than June 30, 2024twelve (12) months prior to the expiration date of the then current Term. The effective giving of such notice of extension by Tenant shall automatically and irrevocably extend the Term of the this Lease for the applicable Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, or if Tenant shall elect to extend the Term solely with respect to the second floor space or the third floor space, then this Lease shall automatically terminate on June 30with respect to the remainder of the Premises at the end of the Initial Term, 2025or the first Extended Term, as applicable, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be Lease with respect to such portion of the essence in Premises. Each Extended Term shall commence on the giving day immediately succeeding the expiration date of such noticethe Initial Term, or the expiration of the first Extended Term, as applicable, and shall end on the day immediately preceding the fifth (5th) anniversary of the first day of the Extended Term. The Extended Term Terms shall be on all the terms and conditions of this Lease, except that except: (i) during the Annual second Extended Term, Tenant shall have no further option to extend the Term, (ii) the Basic Rent for the each Extended Term shall be determined pursuant to paragraph ninety-five percent (b95%) hereof.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term, taking into account all relevant factors, determined pursuant to paragraph (b) below; and (iii) if Tenant shall elect in such notice of extension to extend the Term for only the second floor space or the third floor space, the Premises thereafter shall solely refer to such space.
(b) Promptly after receiving Tenant's notice extending the "Determination Date"). The term "Fair Market Rental Value" shall mean Term of this Lease pursuant to paragraph (a) above, but in no event sooner than eleven months prior to the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease end of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended then current Term, the Tenant’s Share Landlord shall provide Tenant with Landlord's good faith estimate of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before of the Determination DatePremises for the upcoming Extended Term based upon rents being paid by tenants entering into leases for first-class office similar in size, then Landlord build-out, amenities and term in the Medford/Charlestown area. If Tenant each shall give notice (the "Determination Notice") is unwilling to the other setting forth their respective determinations accept Landlord's estimate of the Fair Market Rental ValueValue as set forth in Landlord's notice referred to above, andand the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, subject to the provisions of paragraph (c) below, then either party may apply to submit the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value of the Premises to arbitration by giving notice to the other party naming the initiating party's arbitrator within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party's arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party's arbitrator. If the second arbitrator shall have been so appointed, then the two arbitrators thus appointed shall make their own determination of Fair Market Rental Value and shall meet and confer in an effort to reconcile their respective determinations. If, within thirty (30) days after the appointment of the second arbitrator, the two arbitrators have not reached agreement, and if the difference between the two (2) determinations is less than ten percent (10%), then the average of the two determinations shall be the Fair Market Rental Value. That there If, however, the difference between the two (2) determinations is ten percent (10%) or more, then the two arbitrators shall, within ten (10) days after the expiration of such thirty (30) day period, appoint a third arbitrator; in the event the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the American Arbitration Association, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. In such event, the third arbitrator shall conduct its own independent investigation of the applicable Fair Market Rental Value within fifteen (15) days of his/her appointment; neither Landlord's arbitrator nor Tenant's arbitrator shall notify the third arbitrator of its determination. After the third arbitrator has completed its determination, the third arbitrator shall notify Landlord and Tenant of the date on which said arbitrator will discloses its determination, which date shall be only one at least five (5) days after the giving of such notice. Such disclosure shall take place in Landlord's office unless otherwise mutually agreed by the parties. In such case, the Fair Market Rental Value shall be the rent proposed by either Landlord's arbitrator or Tenant's arbitrator, whichever value is closer to the determination of the third arbitrator; if the two are equidistant from the third arbitrator, the Fair Market Rental Value shall be equal to the third arbitrator's determination. All arbitrators shall be appraisers or other qualified real estate professionals who shall are independent from the parties who have had at least ten (10) years’ experience as a years commercial real estate broker or appraiser experience in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenantgreater Boston area. Each party shall pay the fees of its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b)arbitrator, and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) third arbitrator shall be final and binding in fixing shared equally by the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseparties.
Appears in 1 contract
Option to Extend. (a) Subject to Provided that at the terms hereof, if time of such exercise (i) during the Term of the Lease there then exists no Default of Tenant hereunder (or any event or circumstance whichLESSEE, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the this Lease or sublet all or any portion of the Premises, is then in full force and then actually occupies the entire Premiseseffect, and (iii) the Lease LESSEE is still in full force and effect (any and actual occupancy of all or substantially all of which conditions are for the benefit ofPremises, and may be waived by, Landlord), Tenant LESSEE shall have the right and option to extend the Term term of this Lease for one (1) extended term of five years (the "Extended Term") of five (5) years'). The Extended Term shall commence on July 1, 2025the day immediately succeeding the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the fifth anniversary of the first day of such Extended Term. Tenant LESSEE shall exercise such option to extend by giving written notice to Landlord LESSOR of its desire to do so not earlier than twelve (12) months and not later than June 30nine (9) months prior to the expiration date of the Initial Term. Provided the conditions of clauses (i), 2024. The (ii) and (iii) of this section shall have been satisfied, the giving of such notice by Tenant LESSEE shall automatically and irrevocably extend the Term of the this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant LESSEE fails to give such notice to LandlordLESSOR, the this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant LESSEE shall have no further option to extend the Term of this Lease, it being . It is agreed that time shall be is of the essence in with respect to the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that (I) option to extend that Term of this Lease shall be deleted, and (II) the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for at Fair Market Value, not less than the first sum of the rent and all additional rent being paid by LESSEE during the final year of the Extended Term Initial Term. LESSOR shall designate Fair Market Value, (the "Fair Market Value") by written notice to LESSEE within sixty (60) days of receipt of notice from LESSEE. If LESSEE disagrees with such designation, (the "Designation"), LESSEE shall by written notice, advise LESSOR of such disagreement; otherwise LESSEE shall conclusively be deemed to have agreed to such Designation. In the event that the Parties are unable to agree, each Party shall appoint an appraiser. Each appraiser so appointed shall be instructed to determine independently the Fair Market Rental Value of and then confer. If the Premises (exclusive of the cost of supplying Tenant electricity)two appraisers are unable to determine a Designation acceptable to both parties, to be established as of the commencement of the Extended Term (the "Determination Date")they shall appoint a third appraiser. The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease Designation of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes this appraiser shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leaseconsidered final.
Appears in 1 contract
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Initial Term for one (1) additional consecutive period of five (5) years (hereinafter referred to as the "Extension Period"), provided that (a) Tenant shall give Landlord notice of Tenant's exercise of such option at least twelve (12) full calendar months prior to the expiration of the Initial Term (b) no Default of Tenant shall exist at the time of giving each applicable notice and the commencement of the applicable Extension Period and (c) the Original Tenant named herein is itself occupying the entire Premises both at the time of giving the applicable notice and at the time of commencement of such Extension Period. Except for the amount of Basic Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional period through which the Term of this Lease shall be extended as aforesaid, except that there shall be no further options to extend the Term nor shall Landlord be obligated to make or pay for one extended term (any improvements to the "Extended Term") Premises nor pay any inducement payments of five (5) yearsany kind or nature. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. If Tenant shall give notice of its exercise of such option to extend by giving written notice to Landlord not later than June 30in the manner and within the time period provided aforesaid, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of this Lease shall be extended upon the Lease for giving of each such notice without the Extended Termrequirement of any further attention on the part of either Landlord or Tenant except as may be required in order to determine Basic Rent as hereafter set forth. Landlord hereby reserves the right, and no instrument of renewal need be executedexercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. In the event that If Tenant fails shall fail to give timely notice of the exercise of any such notice to Landlordoption as aforesaid, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option right to extend the Term of this Lease, it time being agreed that time shall be of the essence in of the giving of such noticeforegoing provisions. The Extended Term shall be on all the terms and conditions Any termination of this Lease, except that Lease Agreement shall terminate the Annual Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofrights hereby granted Tenant.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Samples: Sublease (Genomic Solutions Inc)
Option to Extend. (a) Subject Lessor hereby grants to Lessee the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right option to extend the Term term of this Lease for one extended (1) additional sixty (60) month period commencing when the prior term expires upon each and all of the following terms and conditions:
(the "Extended Term"i) of five (5) years. The Extended Term shall commence on July 1, 2025Lessee gives to Lessor, and shall end Lessor actually receives on a date which is prior to the date that the option period would commence (if exercised) by at 11:59 p.m.least nine (9) and not more than twelve (12) months, Boston time, on June 30, 2030. Tenant shall a written notice of the exercise such of the option to extend by giving written notice to Landlord this Lease for said additional term, time being of essence. If said notification of the exercise of said option is not later than June 30so given and received, 2024. The giving of such notice by Tenant the option shall automatically and irrevocably extend expire;
(ii) The provisions of paragraph 39, including the Term provision relating to default of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term Lessee set forth in Paragraph 39.4 of this Lease, it being agreed that time shall be Lease are conditions of the essence in the giving this Option;
(iii) All of such notice. The Extended Term shall be on all the terms and conditions of this LeaseLease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows, except that using the Annual Basic Rent method indicated below:
I. Market Rental Value Adjustment(s) (MRV)
(a) On the first (1st) day of the option period, the monthly rent payable under Paragraph 1.5 ("Base Rent") of the attached Lease shall be adjusted to the "Market Rental Value" (as defined below) of the Premises as follows:
(1) Four (4) months prior to the Market Rental Value (MRV) Adjustment Date described above, Lessor and Lessee shall meet to establish an agreed upon new MRV for the Extended Term specified term. If agreement cannot be reached, then:
(i) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next 30 days. Any associated costs will be determined pursuant split equally between the parties, or
(ii) Both Lessor and Lessee shall each immediately select and pay the appraiser or broker of their choice to paragraph establish a MRV within the next 30 days. If for any reason, either one of the appraisals is not completed within the next 30 days, as stipulated, then the appraisal that is completed at that time shall automatically become the new MRV. If both appraisals are completed and the two appraisers/brokers cannot agree on a reasonable average MRV then they shall immediately select a third mutually acceptable appraiser/broker to establish a third MRV within the next 30 days. The average of the two appraisals closest in value shall then become the new MRV. The costs of the third appraisal will be split equally between the parties.
(b2) hereofIn any event the new MRV shall not be less than the rent payable for the month immediately preceding the date for rent adjustment.
(b) The Annual Basic Rent for the first year of the Extended Term shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity)As used herein, to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" or "MRV" for the Premises during the Option term shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises amount per rentable square foot being charged as of the Determination Date. For purposes first day of determining the Fair Market Rental ValueOption term for unencumbered, during the Extended Termnon-sublease, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with thennon-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") equity space comparable to the other setting forth their respective determinations Premises and located in comparable industrial buildings in the vicinity of the Fair Market Rental ValueBuilding, andgiving appropriate consideration to all economic terms, subject to the such as annual rental rates per rentable square foot, abatement provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expensesreflecting free rent, if any, length of the lease term, size and location of premises being leased and other generally acceptable terms and conditions and concessions for the tenancy of the space in question except that (i) no concessions shall be provided for tenant improvements or allowances provided to such tenants since Lessor shall have no obligation to construct or pay for any improvements for or in the Premises for the Option term, and (ii) no consideration shall be given to the fact that any rental abatement is or is not given such tenants in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees construction of any improvements in such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Leasecomparable space.
Appears in 1 contract
Samples: Standard Industrial/Commercial Multi Tenant Lease (Graham Field Health Products Inc)
Option to Extend. (a) Subject to Provided that, at the terms hereoftime of such exercise, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all beyond applicable cure rights permitted, would constitute a Default of Tenant), and periods; (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the this Lease is still in full force and effect and Tenant actually occupies the entire Premises; and (iii) Tenant shall not have sublet any and or all of which conditions are for the benefit of, and may be waived by, Landlord)Premises, Tenant shall have the right to extend the Term of this Lease as to the Premises originally leased hereunder for one extended term (the "“Extended Term"”) of five three (53) years. The Extended Term shall commence on July 1, 2025the day immediately following the expiration date of the Initial Term, and shall end at 11:59 p.m., Boston time, on June 30, 2030the day immediately preceding the third anniversary of the first day of the Extended Term. Tenant shall exercise such option to extend by giving Landlord written notice of its desire to Landlord do so, not later than June 30ninety (90) days prior to the expiration of the Initial Term, 2024it being agreed that time shall be of the essence with respect to the giving of such notice. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of this Lease for the Extended Term of this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to LandlordLandlord within such time, the Term of this Lease shall automatically terminate on June 30, 2025at the end of the Initial Term, and Tenant shall have no further right or option to extend the Term of this Lease, it time being agreed that time shall be of the essence in the giving of such noticeessence. The Extended Term shall be on all the terms and conditions of this Lease, except that that: (i) Landlord shall have no obligation to perform or pay for any construction or improvements to the Annual Premises, with respect to the Extended Term unless otherwise expressly agreed at the time; and (ii) the Basic Rent for the Extended Term shall be determined pursuant to paragraph (b) hereofin accordance with Paragraph 36(b).
(b) The Annual Basic Rent for the first year of the Extended Term shall be at a rental rate equal to the Fair Market Rental Value (in the North Suburban Boston area) of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term Term, determined without regard to Tenant’s right to extend, as agreed by the parties, it being understood that during the Extended Term, Additional Rent shall continue to be calculated in accordance with Paragraph 7 of this Lease.
(the "Determination Date"). c) (i) The term "“Fair Market Rental Value" ” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises premises in question as of the date (the “Determination Date. For purposes of determining ”) on which the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicessame is to become effective. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six sixty (660) months days before the Determination Date, then Landlord and Tenant each shall give notice (the "“Determination Notice"”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (cii) below, either party may apply to the then president of the Real Estate Finance American Arbitration Association of the Greater Boston Real Estate Board, or any successor thereto, thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there The arbitrator shall be only one arbitrator, a real estate appraiser or consultant who shall have had at least lease ten (10) years’ continuous experience as a commercial real estate broker or appraiser appraiser, and having significant experience with property similar to the Building in the Natick/Speen Street/Route 30 office rental marketgreater Boston area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (bc), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (bii) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Samples: Lease (Implant Sciences Corp)
Option to Extend. (a) Subject Lessor hereby grants to Lessee the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term Lease for one additional sixty (60)-month period, commencing June 1, 2002, upon each and all of the following terms and conditions:
a. Lessee gives to Lessor, and Lessor actually receives, on or after June 1, 2001, and on or before December 1, 2001, a written notice of the exercise of the option to extend this Lease for said additional term, time being of the essence. If said notification of the exercise of said option is not so given and received, the option shall automatically expire.
b. The provisions of Paragraph 39.4, including the provision relating to default of Lessee set forth in Paragraph 39.4 of the Lease, it being agreed that time shall be are conditions to this option.
c. All of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions condition of this the Lease, except that the Annual Basic where specifically modified by this option, shall apply.
d. The monthly Rent for each month of the Extended Term option period shall be determined pursuant to paragraph calculated as follows: On June 1, 2002, the monthly Rent payable under Paragraph 1.5 (b"Base Rent") hereof.
(b) The Annual Basic Rent for the first year of the Extended Term Lease shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), adjusted to be established as of the commencement of the Extended Term (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises property as follows:
15 (1) On or about February 1, 2002, Lessor and Lessee shall meet to establish an agreed upon new Market Rental Value for the specified term. If agreement cannot be reached, then Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the Market Rental Value within the next 30 days. Any associated costs will be split equally between the parties. Alternatively, both Lessor and Lessee shall immediately select and pay the appraiser or broker of their choice to establish a Market Rental Value within the next 30 days. If, for any reason, either of the Determination Dateappraisals is not completed within the next 30 days, as stipulated, then the appraisal that is completed at that time shall automatically become the new Market Rental Value. For purposes of determining If both appraisals are completed and the Fair two appraisers/brokers cannot agree on a Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes then they shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail immediately select a third mutually acceptable appraiser/broker to agree upon the Fair establish a third Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations next 30 days. The average of the Fair Market Rental Value, and, subject to two appraisals closest in value shall then become the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair new Market Rental Value. The arbitrator cost of the third party appraiser shall be equally split between the parties. In any event, the new Market Rental Value shall not have be less than the power to add to, modify, or change any of Rent payable for the provisions of this Leasemonth immediately preceding the date for the last Rent adjustment.
Appears in 1 contract
Samples: Standard Industrial/Commercial Single Tenant Lease (Masimo Corp)
Option to Extend. (a) Subject to the terms hereof, if Section 17.19 of this Lease below (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord’s Right to Revoke), Tenant shall have the right option to extend the Term of this Lease (together with the Storage Term of the Storage Lease) for one extended (1) further term (the "Extended Term") of five (5) yearsyears (the “Extension Term”). The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend the Term of the Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term Such extension shall be on all the same terms and conditions of as contained in this Lease, except that that: (i) there shall be no further right to extend after the Annual Basic expiry of the Extension Term; (ii) the Minimum Rent payable for the Extended Term Premises and the Storage Rent (as defined in the Storage Lease) payable for the Storage Premises shall be such amount as determined pursuant to paragraph subsection 17.6(b) below; and (biii) there shall be no tenant’s allowance or rent-free period for the Extension Term and the Premises and the Storage Premises shall be accepted by Tenant in “as is” condition at the commencement of the Extension Term without Landlord being required to perform any work. Such right to extend shall be exercisable by notice to Landlord by not later than nine (9) months prior to the expiry of the original Term hereof, failing which such right shall be null and void and forever extinguished.
(b) The Annual Basic Minimum Rent and Storage Rent for the first year of the Extended Extension Term shall be the Fair market rent (“Market Rental Value Rent”) for the Premises and the Storage Premises, respectively (which for purposes of the definition of Market Rent are collectively referred to as “Premises”). As used herein, “Market Rent” means the annual rental which could reasonably be obtained by Landlord for the Premises from a willing tenant or willing tenants dealing at arms’ length with Landlord in the market prevailing for a term commencing on the relevant date, having regard to all relevant circumstances including the size and location of the Premises, the facilities afforded, the terms of the lease thereof (including its provisions for Additional Rent), and the improvements therein, and with the assumption that the improvements existing at the time are ideal for Tenant’s use as is, and disregarding any deficiencies in the condition and state of repair of the Premises (exclusive as a result of Tenant’s failure to comply with its obligations hereunder in respect of the cost maintenance and repair of supplying the Premises, and having regard to all economic inducements and rentals currently being obtained for space in the Building (if applicable) and for comparable space in other buildings comparably located. The Market Rent for the Extension Term shall be as agreed upon between Landlord and Tenant electricity)or, failing agreement by Landlord and Tenant, by not later than three (3) months prior to the expiry of the Term hereof, the Market Rent shall be established as of by single arbitration pursuant to the Arbitration Act, Ontario. In the event that the Minimum Rent and the Storage Rent payable during the Extension Term has not been determined prior to the commencement of the Extended Term Extension Term, then until such determination has been made, Tenant shall pay Minimum Rent and Storage Rent at a rate equal to one hundred and ten (the "Determination Date"). The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease 110%) percent of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, Minimum Rent and Storage Rent payable during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practicesimmediately preceding twelve (12) month period. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final Upon determination of the Fair Market Rental Value. That there Minimum Rent and Storage Rent for the relevant Extension Term, either Landlord shall be only one arbitrator, who pay to Tenant any excess or Tenant shall have had at least ten (10) years’ experience as a real estate broker or appraiser pay to Landlord any deficiency in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings payments of Minimum Rent and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Storage Rent previously made by Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.”
Appears in 1 contract
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of the Lease there exists no Default of Tenant hereunder (or any event or circumstance which, with the giving of notice or the passage of time, and the expiration of all cure rights permitted, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term up to ---------------- two (the "Extended Term"2) of additional five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend year period(s) by giving written notice to Landlord not later than June 30of its election to extend at least fourteen (14) months prior to the end of the original Term or the end of the first five year extension period, 2024as the case may be. The giving of such notice Yearly Fixed Rent payable by Tenant with respect to each such extension period shall automatically and irrevocably extend be equal to the Term greater of (a) the then fair market -------------- rental value of the Lease Demised Premises for use for the Extended TermPermitted Use, and no instrument or (b) (i) -- the Yearly Fixed Rent for calendar 2008, in the case of renewal need be executed. In the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be determination of the essence Yearly Fixed Rent payable with respect to the first five (5) year extension period and (ii) the Yearly Fixed Rent for calendar 2013, in the giving case of such noticedetermination of the Yearly Fixed Rent payable with respect to the second five (5) year extension period. The Extended Term As used herein, "fair market rental value" shall mean (1) as the same may be on all mutually agreed by Landlord and Tenant; provided, however that (2) if they have not so agreed in writing within two (2) months following the terms and conditions exercise of this Lease, except that the Annual Basic Rent for the Extended Term option then said fair market value shall be determined pursuant by appraisers, one to paragraph (b) hereof.
(b) be chosen by Landlord, one to be chosen by Tenant, and a third to be selected by the two first chosen. The Annual Basic Rent for the first year unanimous written decision of the Extended Term two first chosen, without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be the Fair Market Rental Value of the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement of the Extended Term (the "Determination Date")conclusive and binding upon Landlord and Tenant. The term "Fair Market Rental Value" shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to notify the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or its chosen appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one following expiration of the determinations set forth in either Landlord’s or Tenant’s Determination Noticeaforesaid two (2) month period and, unless such two appraisers shall have reached a unanimous decision within seventy-five (75) days from said expiration, they shall within a further fifteen (15) days elect a third appraiser and that choice by the arbitrator shall be binding upon notify Landlord and TenantTenant thereof. Each party Landlord and Tenant shall pay its own counsel fees each bear the expense of the appraiser chosen by it and expenses, shall equally bear the expense of the third appraiser (if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Samples: Lease (Focal Communications Corp)
Option to Extend. (a) Subject to the terms hereof, if (i) during the Term of Provided that Lessee has not assigned Lessee's ---------------- interest in the Lease there exists no Default of Tenant hereunder or subleased the Premises (or any event or circumstance whichportion thereof, with excepting paragraph 67 herein) and subject to the giving conditions of notice or paragraph 39 under the passage of timeLease, and the expiration of all cure rights permittedLessee, would constitute a Default of Tenant), and (ii) Tenant shall not have assigned the Lease or sublet all or any portion of the Premises, and then actually occupies the entire Premises, and (iii) the Lease is still in full force and effect (any and all of which conditions are for the benefit of, and may be waived by, Landlord), Tenant shall have the right to extend the Term of this Lease for one extended term (the "Extended Term") of five (5) years. The Extended Term shall commence on July 1, 2025, and shall end at 11:59 p.m., Boston time, on June 30, 2030. Tenant shall exercise such option to extend by giving written notice ("Option to Landlord not later than June 30, 2024. The giving of such notice by Tenant shall automatically and irrevocably extend Extend") the Term of the Lease for one (1) period of five (5) years ("Second Extended Term") on the terms and conditions provided herein, except with regard to the amount of the Base Rent and adjustments, as described below. Lessee shall exercise the Option to Extend, if at all, by giving written notice (the "Option Notice") to Lessor at least six (6) months, but no more than twelve (12) months prior to the expiration date of the Extended Term of this Lease. If Lessee fails to exercise the Option to Extend by giving the Option Notice to Lessor on or before a date which is twelve (12) months to six (6) months prior to the expiration of the Extended Term, the Option to Extend will be deemed to have been waived by Lessee. If Lessee is in default under the terms and provisions of the Lease on the date of giving the Option Notice, and such default is not cured within the applicable cure period, the Option Notice, at Lessor's sole election, shall be totally ineffective; and if Lessee is in default of any terms or provisions of the Lease on the date the Second Extended Term is to commence, which default is not cured within the applicable cure period, then at Lessor's sole election, the Second Extended Term shall not commence and this Lease shall expire at the termination of the Extended Term of this Lease. The Base Rent payable by Lessee to Lessor at the commencement of the Extended Term, and no instrument of renewal need be executed. In adjustments to the event that Tenant fails to give such notice to Landlord, the Lease shall automatically terminate on June 30, 2025, and Tenant shall have no further option to extend the Term of this Lease, it being agreed that time shall be of the essence in the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that the Annual Basic Base Rent for the Extended Term shall be determined pursuant to paragraph (b) hereof.
(b) The Annual Basic Rent for the first year of during the Extended Term shall be the Fair Market Rental Value then prevailing market rental rate and adjustments for space of equivalent quality, size, utility and location with the Premises (exclusive of the cost of supplying Tenant electricity), to be established as of the commencement length of the Extended Term (and the "Determination Date"). The term "Fair Market Rental Value" shall mean credit standing of Lessee to be taken into account, as agreed to by Lessor and Lessee; as hereinafter provided but in any event not less than the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease Base Rent payable at the expiration of the Premises as of the Determination Date. For purposes of determining the Fair Market Rental Value, during the Extended Term, the Tenant’s Share of Operating Expenses and Taxes shall be computed using updated base years, consistent with then-prevailing market practices. If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within six (6) months before the Determination Date, then Landlord and Tenant each shall give notice (the "Determination Notice") to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (c) below, either party may apply to the then president of the Real Estate Finance Association of the Greater Boston Real Estate Board, or any successor thereto, for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. That there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a real estate broker or appraiser in the Natick/Speen Street/Route 30 office rental market. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (b), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (b) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 1 contract
Samples: Lease Amendment (Ddi Capital Corp/Dynamic Details Inc)
