Options to Extend Term. Tenant shall have options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions: 42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties. 42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion. 42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease. 42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option: (a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or (b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or (c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period. 42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4. 42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 6 contracts
Samples: Sublease Agreement (Atara Biotherapeutics, Inc.), Lease (CareDx, Inc.), Lease (CareDx, Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five [***] percent (95[***]%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis.
3.2.1. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than fifteen (915) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.2. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s 's reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(bSection 3.2(ii), Landlord shall not be required to provide Tenant with a notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default two defaulted in the performance of its obligations under this Lease three (23) or more separate times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3. If Tenant shall fail to timely exercise the Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4. The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's timely and proper exercise of an Extension Option.
Appears in 4 contracts
Samples: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent during each Option period shall equal the greater of (a) ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects development/office space in the BrisbaneFremont/Peninsula market as Newark market, including escalations (“FMV”) and (b) one hundred three percent (103%) of the date Tenant exercises Base Rent at the respective Optionexpiration of the then-current Term, increased by three percent (3%) on each annual anniversary of the commencement date of each extended term by such percentagethe respective Option period. FMV shall include, without limitation, consideration of rent adjustments, if any, that constitutes excluding the value of any improvements made to the Premises at Tenant’s cost and expense (other than as part of a market rate annual increase for such marketreimbursement by Tenant under this Lease (e.g., related to the TI Allowance)). In the event that If Landlord and Tenant disagree cannot agree on the FMV within thirty (30) days after Landlord’s receipt of an Option Notice (as to defined below), then the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which Fly shall be split equally determined as follows: a real estate appraiser who is a member of the Appraisal Institute with local knowledge of Alameda County real estate and knowledge of the greater Bay Area laboratory/research and development leasing market (the “Baseball Arbitrator”) shall be selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the chapter of the American Arbitration Association located in or nearest to Alameda County, or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the President of the AAA shall (a) have at least ten (10) years’ experience in the leasing of office and laboratory/research and development space in Alameda County and (b) not have been employed or retained by either Landlord or Tenant or any affiliate of either. Landlord and Tenant shall each submit to the Baseball Arbitrator and to the other its determination of the Fly, The Baseball Arbitrator shall afford to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the FMV of the Premises. The Baseball Arbitrator may not select any other FMV for the Premises other than ones submitted by Landlord and Tenant. The determination of the FMV so selected shall be binding upon Landlord and Tenant and shall serve as the FMV for the applicable Option term. If, as of the commencement date of the applicable Option term, the amount of the Base Rent payable during the applicable Option term in accordance with this Article 42 shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable in respect of the last year of the then-current Term. After the final determination of the Base Rent payable for such Option term, the parties promptly and appropriately shall adjust rental payments theretofore made during the applicable Option term and shall execute a written agreement specifying the amount of the Base Rent as so determined. Any failure of the parties to execute such written agreement shall not affect the validity of the Base Rent as so determined. Notwithstanding anything to the contrary contained in this Section, if the Base Rent during any Option term is determined by appraisal and if Tenant does not, in its sole discretion, approve the rental amount established by such appraisal, Tenant may rescind its exercise of the Option by giving Landlord written notice of such election to rescind within ten (10) days after receipt of all appraisals. If Tenant rescinds its exercise of the Option, then (y) the Lease shall terminate on both partiesthe thirtieth (30th) day after Tenant’s notice of rescission or on the date the Lease would have otherwise terminated absent Tenant’s exercise of the Option, whichever date is later, and (z) Tenant shall pay all costs and expenses of the appraisal.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) but not more than eighteen (18) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
paragraph. 42.4. Notwithstanding anything contained in this Section Article 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 32 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default Defaulted in the performance of its obligations under this Lease two (2) or more times and or a service or late charge has become payable under Section 24.1 32.1 for each of two (2) such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsDefaults.
Appears in 2 contracts
Samples: Lease (Ardelyx, Inc.), Lease (Ardelyx, Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value (“FMV”) for comparable office/research and development projects in which fair-market value shall include annual fair market increases (to be determined at the Brisbane/Peninsula market same time as determination of the date Tenant exercises the respective Option, increased Base Rent for each Option term) on each annual anniversary of the Option term commencement date) for comparable office and laboratory space in the Fremont/Newark market of each extended term by comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”). Tenant may, no more than twelve (12) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant market, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Premises. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Alameda County and Tenant disagree as to San Mateo County laboratory/research and development leasing market (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the American Arbitration Association or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the AAA shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Alameda County and San Mateo County market and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection Section 42.4(b), Landlord shall not be required to provide Tenant with notice of such DefaultDefault other than as required in Section 31.4) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted Defaulted under this Lease three two (32) or more times and a service or late charge under Section 24.1 has become payable for any such defaulttimes, whether or not Tenant has cured such defaults.
Appears in 2 contracts
Samples: Lease (Asterias Biotherapeutics, Inc.), Lease (Biotime Inc)
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five [***] percent (95[***]%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis.
3.2.1. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than twenty-four (924) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.2. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s 's reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(bSection 3.2(ii), Landlord shall not be required to provide Tenant with a notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default two defaulted in the performance of its obligations under this Lease three (23) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3. If Tenant shall fail to timely exercise the Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4. The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's timely and proper exercise of an Extension Option.
Appears in 2 contracts
Samples: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Options to Extend Term. (1) Tenant shall have options an option (each, an “the "Option”") to extend the Term term of this Lease upon the following terms and conditions:
42.1. Tenant shall have for two (2) consecutive Options additional terms of five (5) years on each such option (each as the "Option Term") to extend begin respectively upon the Term first day next succeeding either the Expiration Date, or the expiration of the preceding Option Term, upon the same terms, conditions and provisions as are provided for in this Lease (other than the provisions of this Section 2.a. except that the Minimum Rent payable pursuant to Section 2.a. hereof for each Option Term shall be the greater of (i) the Minimum Rent payable under this Lease by three immediately prior to either the Expiration Date, or the expiration of the preceding Option Term, or (3ii) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value rent for the Leased Premises (“hereinafter "FMV”") for comparable office/research and development projects in on either the Brisbane/Peninsula market as Expiration Date,or the expiration of the date Tenant exercises preceding Option Term (each the respective Option, increased on each annual anniversary "Rent Appraisal Date").
(2) The FMV shall be determined by the mutual written agreement of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketLandlord and Tenant. In the event that Landlord and Tenant disagree shall not have reached mutual agreement as to the FMV on or before the sixtieth (60th) day following the Rent Appraisal Date, but Landlord's determination of the FMV is less than twenty percent (20%) greater than Tenant's determination of the FMV (which respective determinations shall be based on blind written bids submitted at the end of the sixty (60) day period by each of Landlord and Tenant to the other), the FMV will be the average of Landlord's and Tenant's respective determinations. In the event that Landlord and Tenant shall not have reached mutual agreement as to the FMV on or before the sixtieth (60th) day following the Rent Appraisal Date and Landlord's determination of the FMV is more than twenty percent (20%) greater than Tenant's determination of the FMV, then Landlord and Tenant each shall, no later than the seventy-fifth (75th) day following the Rent Appraisal Date, select a Real Estate Appraiser, as hereinafter defined. If either party shall fail to so appoint a Real Estate Appraiser, the one Real Estate Appraiser so appointed shall proceed to determine the FMV. In the event that the Real Estate Appraisers selected by Landlord and Tenant agree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which said determination shall be split equally binding on Landlord and Tenant. In the event that the Real Estate Appraisers selected by Landlord and Tenant, which appraiser’s decision Tenant cannot agree as to the FMV on or before the one hundred fifth (105th) day following the Rent Appraisal Date, then said Real Estate Appraisers shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contraryjointly select a third Real Estate Appraiser, Tenant shall provided that if they cannot assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.agree
Appears in 2 contracts
Samples: Lease Agreement (Techprecision Corp), Lease Agreement (Lounsberry Holdings Ii Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this the Amended Lease. Basic Annual , except as follows:
(a) Base Rent at the commencement of an Option term shall equal ninetythe then-five percent (95%) of the current fair market value (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, shall be increased on each annual anniversary of the Option commencement of each extended date during an Option term by such percentage, if any, that constitutes a market rate annual increase for such marketthree percent (3%). In the event that If Landlord and Tenant disagree cannot agree on the FMV within thirty (30) days after Landlord’s receipt of the Option Notice (as to the FMVdefined below), they shall, within ten (10) business days following the expiration of such thirty (30) day period, mutually agree on a third party real estate broker with at least ten (10) years’ experience in the leasing of life science properties in the San Diego, California area, who shall hire an appraiser reasonably acceptable to both parties, determine the cost of which shall be split equally by Landlord and TenantFMV within twenty (20) days following such broker’s appointment, which appraiser’s decision as to the FMV determination shall be binding on both partiesLandlord and Tenant. Landlord and Tenant shall each pay one-half (1/2) of the cost of the broker. FMV shall be defined as the amount of rent that a well-informed tenant, willing (but not obliged) to lease the Premises, would pay, and that a well-informed landlord, willing (but not obliged) to lease to a tenant, would accept, taking into consideration (i) all uses to which the Premises are adapted and might in reason be applied and (ii) the then-market terms being offered in the Xxxxxx Xxxxx submarket, including all escalations, operating expenses, and additional rent at which tenants, as of the commencement of the Extension Term, for (A) premises that are (1) directly leased (as opposed to subleased), (2) unencumbered, (3) comparable to (a) the Premises in size, location, age and quality and (b) the Building in location, age and quality and (B) transactions for a term comparable to the Option term, in each case taking into account tenant improvements, rental rates, rent increases, free rent periods, market concessions and brokerage commissions.
42.2. Notwithstanding anything in this Lease to (b) No Option is assignable separate and apart from the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Amended Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are (c) An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of this Leasethe essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option.
42.4. (d) Notwithstanding anything contained in this Section 42to the contrary, Tenant shall not have the right to exercise an Option:
(ai) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this the Amended Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(bii) At any time after an event of any Default as described in Section Article 24 of the Original Lease (provided, however, that, for purposes of this Subsection 42.4(b8(d)(ii), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(ciii) In the event that Tenant has committed a Default defaulted in the performance of its obligations under the Amended Lease two (2) or more times and a service or late charge has become payable under Section 24.1 of the Original Lease for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or but only if Tenant has not Tenant cures cured such Defaults defaults within any applicable cure periodfifteen (15) days.
42.5. (e) The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.48(d).
42.6. (f) All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this the Amended Lease three two (32) or more times and a service or late charge under Section 24.1 of the Original Lease has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 2 contracts
Samples: Lease (Receptos, Inc.), Lease (Receptos, Inc.)
Options to Extend Term. Tenant Provided that Lessee is not in Default hereunder either at the date Lessee’s notice of exercise is given or on the date an Additional Term (as defined below) would otherwise commence, Lessee shall have options the option to extend the Term with respect to the entire Premises only (including any Option Space and/or ROFR Space added to the Premises pursuant to Paragraph 52 above) by two (2) additional periods of five (5) years each (each, an “OptionAdditional Term”). Lessee’s option for the first Additional Term (the “First Additional Term”) shall be exercised, if at all, by written notice to extend Lessor given at least nine (9) and no more than twelve (12) months prior to the Expiration Date determined pursuant to Paragraph 1.3 and Article 3 of this Lease. Lessee’s option for the second Additional Term, if any (the “Second Additional Term”) shall be exercisable by Lessee only if Lessee was entitled to and previously exercised the option for the First Additional Term and shall be exercised, if at all, no more than twelve (12) and no less than nine (9) months prior to the expiration date of the First Additional Term. If Lessee is entitled to and gives notice in the manner and within the time set forth in this Paragraph 53, then the Term shall be extended by the applicable Additional Term, on all of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as set forth in this Lease. Basic Annual Lease for the original Term, except that:
a. Base Rent for each Additional Term shall equal be ninety-five percent (95%) of the then fair market value (“FMV”) rental rate or rates for comparable office/research (in terms of location, utility, age, appearance, and development projects in quality) buildings located within the Brisbane/Peninsula market as general geographic location of the date Tenant exercises the respective OptionProject (i.e., increased on each annual anniversary Conejo Valley), as reasonably determined by Lessor. Lessor shall, upon receipt of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase Lessee’s notice provided for such market. In the event that Landlord above and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine three (93) months prior to the end expiration date of the expiration then current term, notify Lessee in writing of its determination of the then-current fair market rental rate or rates for the ensuing Additional Term. Within ten (10) days after such notice is given, Lessee may elect by written notice to Lessor either to (i) unequivocally accept the Base Rent for the Additional Term as determined by Lessor or (ii) submit the matter to appraisal in accordance with (b) below. Lessee’s failure to make a written election strictly in accordance with the preceding sentence shall be deemed to be an acceptance of this Lease.the Base Rent as determined by Lessor, except that an equivocal acceptance of the Base Rent shall be deemed an election by Lessee to submit the matter to appraisal in accordance with (b) below; and
42.4. Notwithstanding anything contained b. If Lessee elects or is deemed to have elected to submit the matter to appraisal in this Section 42, Tenant shall not have the right to exercise an Option:
accordance with (a) During the time commencing from the date Landlord delivers to Tenant a above, then each Party shall, by written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults other. Party given within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, ten (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2010) days after written notice from Landlord such election or deemed election by Lessee, select an appraiser. If either Party shall fail to Tenantselect an appraiser in such manner and within such time, (b) Tenant fails the single appraiser actually selected shall perform the appraisal. If each Party timely and properly selects an appraiser, the two appraisers selected by the Parties shall determine and attempt to commence to cure a default (other than a monetary default) agree on the fair market rental value for the Additional Term within thirty (30) days after their appointment; if they are unable to so agree and their appraised values differ by more than five percent (5%) in the date Landlord gives aggregate over the Additional Term, the two appraisers shall, by written notice to Tenant Lessor and Lessee, select a third appraiser within five (5) days after expiration of the thirty (30) day period within which they were to determine and agree on the fair market rental, which third appraiser shall analyze the fair market rental for the Additional Term. If they cannot agree on a third appraiser within such default time period, or if both Parties fail to select an appraiser in the manner and within the time herein provided, either Party may have the third (cor sole, if applicable) Tenant has defaulted under this Lease three appraiser appointed by application to the presiding judge of the Los Angeles County Superior Court or his or her designee. If the appraised values of the first two appraisers are within five percent (35%) or more times in the aggregate over the Additional Term, then Lessor shall calculate the average of the two appraised values as a flat rental rate for the Additional Term, which average shall be the fair market rental rate for the Additional Term. The appraisers shall have the MAI designation and a service minimum of ten (10) years experience in the Conejo Valley office market. Each of the first two appraisers shall analyze the fair market rental value of the Premises and shall give written notice to the parties of his or late charge under Section 24.1 has become payable her appraisal within thirty (30) days following his or her appointment or selection, but in no event later than the commencement of the Additional Term. If a single appraiser is used, his or her determination shall be the fair market rental rate. If three appraisers are used, the third appraiser shall select one of the values determined by the first two appraisers as the fair market rental rate. The cost of the appraisals shall be shared equally by Lessor and Lessee.
c. The provisions of Paragraphs 2.2, 51(b) and 52 of and Exhibit “C” to the Lease shall not apply during any Additional Term; and
d. In the case of the First Additional Term, there shall be one further option to extend the Term, and, in the case of the Second Additional Term, there shall be no further options to extend the Term. In the event Lessee fails or is not entitled to exercise its option for any such defaultthe First Additional Term, whether or then Lessee’s option for the Second Additional Term shall lapse and shall thereafter not Tenant has cured such defaultsbe exercisable by Lessee.
Appears in 1 contract
Samples: Standard Industrial/Commercial Multi Tenant Lease (Nexsan Corp)
Options to Extend Term. Tenant shall have two (2) options (each, each an “Extension Option”“) to extend the Term of this Lease upon for a period of five (5) years each (each an “Extension Period“), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five half percent (953.5%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine “Extension Notice“) not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this Lease.
42.4Extension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (c) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or and such defaults were not Tenant cures such Defaults cured within any the applicable cure period.
42.5. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.4.
42.6. All of Tenant’s rights under 3.2, then the provisions of the Extension Option shall terminate terminate, and shall be null and void and of no further force and effect. If this Lease or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior right to the commencement date possession of the new termPremises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, (a) or if Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default shall have assigned or (c) Tenant has defaulted under transferred any interest in this Lease three or sublet any part of the Premises (3) except pursuant to a Permitted Transfer, as defined below), then immediately upon such termination, assignment, transfer or more times sublease, the Extension Option shall simultaneously terminate and a service or late charge under become null and void. Time is of the essence with regard to this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults3.2.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant Subject to the satisfaction of the conditions hereinafter set forth, the parties shall have options (each, an “Option”) the right to elect to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two for up to three (23) consecutive Options five (5) year extension terms (each, an "Extension Term"). The conditions precedent to the party’s right to elect to extend the Term of this Lease by three (3) years each on the same terms and conditions for any one or more of such Extension Terms are as this Leasefollows:
2.2.1. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or then be in conjunction with an assignment or transfer of Tenant’s interest in default under this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.;
42.32.2.2. The Options are conditional upon Tenant giving Landlord shall provide written notice to Landlord of its election desire to exercise elect to extend the applicable Option at least nine Term of this Lease not later than one hundred eighty (9180) months days prior to the end of the expiration of initial Term or the then current Extension Term, as applicable;
2.2.3. Tenant shall have been in compliance with the Minimum Sublease Occupancy Requirement set forth in Section 13 below at all times during the Term or the then-current Term Extension Term, as applicable;
2.2.4. The Landlord shall have approved and otherwise agreed to provide continued funding to Tenant in connection with the services to be provided by Tenant to Landlord under the terms and conditions of the Agreement for Services (or a similar agreement), or Tenant shall have demonstrated to Landlord, to Landlord's reasonable satisfaction, that Tenant has secured a third-party funding source which will provide operational funding to Tenant in amounts sufficient to satisfy Tenant's obligations under this Lease., including without limitation, the payment of Base Rent and all other monetary obligations of Tenant, during the entire Extension Term with respect to which Tenant is exercising its right and option to extend;
42.42.2.5. Notwithstanding anything contained Tenant shall have provided to Landlord evidence satisfactory to Landlord that Tenant is not then in this Section 42default of any other obligations of Tenant, including any financial instruments, agreements, loans or grants;
2.2.6. Tenant shall be in good standing with the Arizona Corporation Commission as an Arizona nonprofit corporation; and
2.2.7. Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is then be in default under any provisions the Agreement for Services, if such agreement is still in effect. All terms and conditions of this Lease shall remain in full force and continuing until effect and shall define the legal relationship between Landlord and Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for during each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodExtension Term.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Master Lease
Options to Extend Term. Tenant shall have three (3) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease by three after the third Extension Period, (3b) years each on the same terms and conditions as this Lease. Basic Annual Base Rent payable during the Extension Period shall be an amount equal ninety-five percent (95%) of to the fair market value for similar space in the Capitol Heights, Maryland market, subject to a fair market value rent escalation during the Extension Period consistent with similar space in such market (“collectively, the "FMV”) ").
3.2.1. Upon Landlord’s receipt of an Extension Notice (as defined below), Landlord and Tenant will use good faith efforts to negotiate the FMV, taking into account all relevant factors including, without limitation, all uses which the Premises are adapted and might in reason be applied, rent for comparable office/research and development projects premises in the Brisbane/Peninsula market as relevant competitive market, concessions offered to new tenants, Tenant’s creditworthiness and the quality and location of the date Building and Premises. If Landlord and Tenant exercises cannot agree on the respective OptionFMV within thirty (30) days after Landlord’s receipt of an Extension Notice (as defined below), increased on each annual anniversary then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the commencement of each extended term Capitol Heights, Maryland leasing market (the "Baseball Arbitrator") shall be selected and paid for jointly by such percentage, if any, that constitutes a market rate annual increase for such marketLandlord and Tenant. In the event that Landlord and Tenant disagree as cannot agree upon the Baseball Arbitrator, then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the "JAMS"). The Baseball Arbitrator selected by the parties or designated by JAMS shall (a) have at least ten (10) years’ experience in the leasing of relevant space in the applicable market and (b) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV, they . The Baseball Arbitrator shall hire an appraiser reasonably acceptable grant to both parties, Landlord and Tenant a hearing and the cost right to submit evidence. The Baseball Arbitrator shall determine which of which shall be split equally the two (2) FMV determinations more closely represents the actual FMV. The Baseball Arbitrator may not select any other FMV for the Premises other than one submitted by Landlord and or Tenant, which appraiser’s decision as to . The FMV selected by the FMV Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Extension Period. After the final determination of Base Rent payable for the Extension Period, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Extension Period. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.23.2.2. Notwithstanding anything in this Lease If Tenant exercises an Extension Option, such Extension Option shall apply to the contrary, entire Premises (and no less than the entire Premises). Tenant shall not assign or transfer may exercise an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant Extension Option only by giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.3. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default Default (i.e. beyond any applicable notice and cure period) under this Lease, in the case of any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults arose during the twelve (12)-month 12) month period immediately prior to the date that Tenant intends to exercise an Extension Option; or (b) in the event that Tenant has been in Default with respect to any of its monetary obligations under this Lease two (2) or more times during the twelve (12) month period immediately prior to the date that Tenant intends to exercise an Extension Option, whether or not Tenant cures has cured such Defaults within any applicable cure period.
42.5Defaults. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.43.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect.
42.63.2.4. All of Tenant’s rights under with respect to the provisions of the Extension Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an the Extension Option if, after such exercise, but prior to the commencement date of the new termExtension Period, (ai) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, or (bii) Tenant fails to commence to cure a material non-monetary default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default material non-monetary default. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises other than in the case of a Permitted Transfer, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.5. The Extension Options are conditioned upon (a) each Full Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's successful exercise of an Extension Option; and (b) delivery of one of the following: (i) in the event the Limited Guaranty has not been substituted pursuant to Section 6.4 below, the Limited Guarantor executing and delivering an amendment to its Limited Guaranty that explicitly extends the Limited Guarantor’s obligations so that the Limited Guarantor guarantees, subject to the limitations set forth in such Limited Guaranty, Tenant’s lease obligations incurred pursuant to Tenant’s successful exercise of an Extension Option, or (cii) Tenant has defaulted under this Lease three (3in the event there is a Substitute Guarantor(s), such Substitute Guarantor(s) or more times executing and a service or late charge under Section 24.1 has become payable for delivering an amendment to the applicable Guaranty, subject to any limitations set forth in such defaultGuaranty, whether or not Tenant has cured such defaultsguaranteeing Tenant’s lease obligations incurred pursuant to Tenant’s successful exercise of an Extension Option.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant shall have options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options options (each, an “Option”-) to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) (each, an “Option Term”) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease. Basic Annual , except as follows:
43.1 Base Rent shall equal ninety-five percent be adjusted on the first (95%1st) day of the Option Term to a rate equal to the greater of (a) fair market value for laboratory and office space in the Mid Cambridge submarket of comparable age, quality, level of finish, and proximity to amenities and public transit (“FMV”) for comparable office/research and development projects (b) the Base Rent in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option effect at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4Term. Notwithstanding anything contained in this Section 42, If Landlord and Tenant shall cannot have agree on the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, FMV for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) Term within thirty (30) days after the date on which Tenant notifies Landlord gives that it is exercising the Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and Tenant shall each furnish to the other a notice to Tenant in writing (an “FMV Notice”) stating such party’s estimate of the FMV. Each of such default or notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Mid-Cambridge submarket (an “Appraiser”) stating such Appraiser’s opinion of FMV. If only one (1) party’s Appraiser timely submits its opinion of FMV, such FMV shall be binding on Landlord and Tenant. If, within twenty (20) days after expiration of the Submission Period, Landlord and Tenant still cannot agree on the FMV, the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Massachusetts panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMV, which opinion shall be strictly limited to choosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, and each shall pay for its own appraisal. The cost of the Referee shall be shared equally by Landlord and Tenant. In determining FMV, Landlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors, including, without limitation, (a) the size of the Premises and length of the Option Term, (b) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, and moving allowances, (c) Tenant has defaulted under Tenant’s creditworthiness and (d) the quality and location of the Building and the Project. Base Rent during any Option Term shall be increased on each annual anniversary of the Option Term commencement date by 3%.
43.2 No Option is assignable separate and apart from this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsLease.
Appears in 1 contract
Samples: Lease (Epizyme, Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, each an “Extension Option”) to extend the Term of this Lease upon for a period of five (5) years each (each an “Extension Period”), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five half percent (953.5%) of on an annual basis.
3.2.1 If Tenant exercises an Extension Option, such Extension Option shall apply to the fair market value entire Premises (and no less than the entire Premises). Tenant may exercise an Extension Option only by giving Landlord irrevocable and unconditional written notice thereof (the “FMVExtension Notice”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine later than twenty-four (924) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.4. 3.2.2 Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3 If Tenant shall fail to timely exercise the Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant’s right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4 The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant’s Lease obligations incurred pursuant to Tenant’s timely and proper exercise of an Extension Option.
Appears in 1 contract
Options to Extend Term. Tenant shall have If this Lease has not been cancelled or ------------------------ terminated prior to March 31, 2002, and if the Lessee is at the time of exercise and through March 31, 2002, in possession of the Premises and is not at the time of exercise and through March 31, 2002 in default of any of terms, covenants or conditions of this Lease, Lessee is hereby granted two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have for two (2) consecutive Options to extend the Term additional terms of this Lease by three five (35) years each on from and after March 31, 2002; provided that Lessee gives written notice to Lessor of the same exercise of each option of extension at least one hundred twenty (120) days prior to the expiration of the preceding Term. The terms and conditions of the Lease during the extended five (5) year option periods shall be the same as this Lease. Basic Annual herein contained, except that the monthly Base Rent shall equal be increased to ninety-five percent (95%) of the then prevailing fair market rental value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the commencement date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term option period, which shall be mutually agreed upon by such percentageLessor and Lessee, if anypossible. However, no reevaluation shall result in a rental rate less than that constitutes a market rate annual increase established for such marketthe prior rental period. In the event that Landlord Lessor and Tenant disagree as to Lessee cannot mutually agree upon the FMV, they shall hire an appraiser reasonably acceptable to both partiesthen prevailing fair rental value of the Premises, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end determination of the expiration fair rental value as of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of each option period shall be based upon an appraisal by an S.I.R. broker or an M.A.I. appraiser acceptable to both Lessor and Lessee to the new term, (a) Tenant fails to pay to Landlord a monetary obligation Los Angeles Chapter of Tenant for a period the American Arbitration Association. All costs and fees of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within said broker or of the American Arbitration Association shall be borne equally by Lessor and Lessee. The fair rental value shall be increased during the second thirty (30) days after months of each five (5) year extended term, the date Landlord gives notice to Tenant amount of such default or increases to be agreed upon at the time the fair rental value is established. Except as expressly set forth herein, all other terms and conditions of the Lease shall remain unaffected by this Amendment, and are hereby ratified and affirmed. GOLKAR ENTERPRISES, LTD. MOTORCAR PARTS & ACCESSORIES, INC. -------------------------------- ---------------------------------- BY: XXXXX X. XXXXXX GENERAL PARTNER DATED: _________________________ DATED: ___________________________ [Exhibit A is a floor plan of the leased premises and adjacent parking area.] Exhibit B
1. Upgrade power to meet Lessee's requirements not to exceed 3,000 AMPS, 277/480 volt 3 phase power, exact amount of power and location to be agreed upon by Lessor and Lessee.
2. Complete installation of 400 watt metal halide light fixtures in balance of 0000 Xxxxxxxxxx Xxxxxx and replace existing lighting at 0000 Xxxxxxxxxx Xxxxxx with 400 watt metal halide lighting fixtures; both lighting grids to be the same as those existing at 0000 Xxxxxxxxxx Xxxxxx.
3. Construct additional restrooms to accommodate requirements for a total of 400 employees for the entire Premises, the location to be mutually agreed upon by the Lessor and Lessee per the approximate location indicated on the attached plan.
4. Remove excess offices (cboth levels) Tenant has defaulted under this Lease in easterly side of 0000 Xxxxxxxxxx Xxxxxx (see plan) and modify sprinklers and lighting to match existing high bay warehouse.
5. Paint and recarpet remaining office areas at 0000 Xxxxxxxxxx Xxxxxx after removing demountable partitions as shown on plan.
6. Remove most of lab area in northeast side as agreed upon by Lessor and Lessee.
7. Add six (6) dock levelers at locations to be specified by Lessee.
8. Reopen three (3) or more times existing openings between 2929 and 0000 Xxxxxxxxxx Xxxxxx.
9. Patch and repaint existing east-west partition separating high bay space.
10. Install fire sprinkler earthquake bracing in areas not already in compliance. [Exhibit B includes a service or late charge under Section 24.1 has become payable floor plan depicting the planned tenant improvements.] [LETTERHEAD OF MOTORCAR PARTS & ACCESSORIES, INC.] November 14, 1996 Xxxxx X. Xxxxxx 00000 Xxx Xxxxxxx Xxxx., Suite 600 Los Angeles, California 90049 Re: 0000-00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Dear Xxxxx: At long last, attached please find four (4) executed Lease Addendums for any such default, whether or not Tenant has cured such defaultsthe above-referenced property for your review and execution. We appreciate your patience while we have been finalizing various issues concerning our occupancy.
Appears in 1 contract
Options to Extend Term. Tenant shall have two (2) options (each, each an “Extension Option”“) to extend the Term of this Lease upon for a period of five (5) years each (each an “Extension Period“), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms two and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five half percent (952.5%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine “Extension Notice“) not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this Lease.
42.4Extension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (c) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or and such defaults were not Tenant cures such Defaults cured within any the applicable cure period.
42.5. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.4.
42.6. All of Tenant’s rights under 3.2, then the provisions of the Extension Option shall terminate terminate, and shall be null and void and of no further force and effect. If this Lease or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior right to the commencement date possession of the new termPremises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, (a) or if Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default shall have assigned or (c) Tenant has defaulted under transferred any interest in this Lease three or sublet any part of the Premises (3) except pursuant to a Permitted Transfer, as defined below), then immediately upon such termination, assignment, transfer or more times sublease, the Extension Option shall simultaneously terminate and a service or late charge under become null and void. Time is of the essence with regard to this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults3.2.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease. Basic Annual , except as follows:
42.1 Base Rent during each Option term shall equal ninety-five percent (95%) of the then-current fair market value for comparable office and laboratory space in the Rockville, Maryland submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”). Tenant may, no more than six (6) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including but not limited to (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable office/research and development projects buildings in the Brisbane/Peninsula market relevant submarket, including rent escalations and concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness, and (e) the quality and location of the date Tenant exercises Building and the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketProject. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Rockville, Maryland laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least fifteen (15) years’ experience in the leasing of laboratory/research and development space in the Rockville, Maryland submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both parties.
42.2upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. Notwithstanding anything in this Lease to If, as of the contrarycommencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of Tenant’s interest in the FMV determined pursuant to this Section.
42.2 No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are 42.3 An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine six (96) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.4. 42.4 Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(cb) In the event that Tenant has committed a Default two defaulted in the performance of its monetary obligations under this Lease three (23) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.5. 42.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. 42.6 All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 31.1 has become payable for any such default, whether or not Tenant has cured such defaults.
42.7 Notwithstanding anything to the contrary in this Lease, the Premises shall be deemed to contain 30,000 square feet of Rentable Area for purposes of determining Base Rent during any Option term.
Appears in 1 contract
Samples: Lease (Glycomimetics Inc)
Options to Extend Term. (a) Tenant shall have options the option (each, an “Option”collectively the "Extension Options") to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have Term, for two (2) consecutive Options to extend the Term of this Lease additional periods (each an "Option Term") by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord prior written notice of its Tenant's election to exercise the applicable each Extension Option at least not more than nine (9) months prior to before the end of the then scheduled expiration of the then-current Term and not less than six (6) months before the then scheduled expiration of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise Term; provided that if there exists an Option:
(a) During uncured Event of Default on Tenant's part either at the time commencing from of the date exercise of such Extension Option or at the time that the Option Period would commence, Landlord delivers to Tenant a written notice that Tenant is may cancel Tenant's exercise of such Extension Options in default under which case such Extension Option and any provisions of other Extension Options granted by this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an effect.
(b) The first Option if, after such exercise, but prior to Period will extend the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant Term for a period commencing the day following the expiration of twenty the original Term of this Lease (20the "First Option Commencement Date") days after written notice from Landlord and ending on June 30, 2006 (the "First Option Term"). The Monthly Rent for the First Option Term shall be as follows: Period: Monthly Rent per RSF: ------- --------------------- Building / Warehouse First Option Commencement Date-December 31, 2002 $.95 / $.475 January 1, 2003-June 30,2004 $1.00 / $.50 July l, 2004-December 31, 2005 $1.05 / $.525 January 1, 2006-June 30, 2006 $l.l0 / $.55 Except for the Monthly Rent, the lease of the Premises for the First Option Term shall be on the same terms and conditions as are contained in this Lease.
(c) The Second Option Term will extend the First Option Term for a period commencing the day following the expiration of the First Option Term and ending on June 30, 2011 (the "Second Option Term"). The Monthly Rent for the Second Option Term shall be determined in accordance with Section 42 hereof.
(d) Each of the Extension Options are personal to Tenant, (b) Tenant fails to commence to cure a default the named tenant herein and any Transfer of such tenant's interest in the Lease (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such defaultPermitted Transfer), whether or not Tenant has cured consented to by Landlord, shall cause such defaultsExtension Option and any subsequent Extension Option to terminate and be of no further force or effect.
Appears in 1 contract
Samples: Industrial Lease (Sandisk Corp)
Options to Extend Term. Tenant TENANT shall have options (each, and is hereby given and granted an “Option”) option to extend the Term term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two for a period of five (2) consecutive Options to extend the Term of this Lease by three (35) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Optioncommencing November 1, increased on each annual anniversary of the commencement of each extended term 2004, which option may be exercised by such percentageTENANT, if anyTENANT is not in default hereunder, that constitutes a market rate annual increase for such market. In by the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost giving of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its such election to exercise the applicable Option at least nine LANDLORD not less than twelve (912) months prior to the end expiration of this Lease. In case said option is exercised, the same terms, conditions, covenants and provisions of this Lease applicable to the original five (5) year term shall apply to the extended term, including, without limitation, the rental adjustment provisions of Section I-B of this Lease. In addition, the insurance amounts referenced in Section V-B shall be increased by such amount as LANDLORD and TENANT agree is required to properly protect LANDLORD from liability arising out of TENANT'S use of the Leased Premises. If LANDLORD and TENANT shall be unable to agree upon the amount of increase in required liability insurance coverage, then the matter shall be resolved through mediation proceedings to be held in Evansville, Indiana, with each party paying one-half (1/2) of the cost thereof. If TENANT shall have exercised the option granted by the preceding grammatical paragraph, then TENANT shall have, and is hereby given and granted, an additional option to extend the term of this Lease for a period of five (5) years commencing November 1, 2009, which option may be exercised by TENANT, if TENANT is not in default hereunder, by giving written notice of such election to LANDLORD not less than twelve (12) months prior to the expiration of the then-current Term first (1st) five (5) year extended term of this Lease.
42.4. Notwithstanding anything contained in this Section 42In case such option is exercised, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any same terms, conditions, covenants and provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults applicable during the twelve first (12)-month period immediately prior 1st) five (5) year extended term shall apply to the date that Tenant intends second (2nd) five (5) year extended term, including, without limitation, the rental payable pursuant to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the Exhibit (10.3)-p 8 provisions of Section 42.4.
42.6I-C of this Lease. All In addition, the insurance amounts referenced in Section V-B shall be increased by such amount as LANDLORD and TENANT agree is required to properly protect LANDLORD from liability arising out of Tenant’s rights under the provisions TENANT'S use of the Option Leased Premises. If LANDLORD and TENANT shall terminate and be unable to agree upon the amount of no further force or effect even after Tenant’s due and timely exercise of an Option ifincrease in required liability insurance coverage, after such exercisethen the matter shall be resolved through mediation proceedings to be held in Evansville, but prior to the commencement date Indiana, with each party paying one-half (1/2) of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultscost thereof.
Appears in 1 contract
Samples: Lease (Champion Industries Inc)
Options to Extend Term. Tenant (including any permitted assignee of this Lease) shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the UTC submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than twelve (12) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of each extended term by the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such marketnotice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Project. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the UTC laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the UTC submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection Section 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its monetary or material non-monetary obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Ignyta, Inc.)
Options to Extend Term. Provided that (a) Landlord has not given Tenant notice of a monetary default and/or a material non-monetary Event of Default more than seven (7) times preceding the Expiration Date, (b) Tenant is not in default under this Lease beyond any applicable notice and cure period(s) nor is there any event that with the giving of notice and/or the passage of time would constitute a default, and (c) Tenant (or a transferee permitted under Section 21(b)) is the occupant of at least seventy five percent (75%) of the Premises, Tenant shall have options (each, an “Option”) the right and option to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by for three (3) years each on additional periods of sixty (60) months each, exercisable by giving Landlord prior written notice (“Tenant’s Notice”), at least two hundred seventy (270) days in advance of the Expiration Date (as may be extended by a renewal term) of Tenant's election to extend the Term; it being agreed that time is of the essence and that this option is personal to Tenant and any transferee permitted under Section 21(b) and is non-transferable to any assignee or sublessee other than any transferee permitted under Section 21(b). Such extension shall be under the same terms and conditions as provided in this Lease. Basic Lease except as follows:
(a) the additional period shall begin on the Expiration Date (as may be extended by a renewal term);
(b) all references to the Term in this Lease shall be deemed to mean the Term as extended pursuant to this Section; and
(c) the Minimum Annual Rent payable with its determination of Fair Market Value by Tenant shall equal ninety-be ninety five percent (95%) of the fair market value Fair Market Rental for the Premises. Landlord shall provide Tenant with written notice of its proposed determination of Fair Market Value for the Premises within thirty (“FMV”30) days after receipt of Tenant’s Notice. The parties shall have forty-five (45) days after Landlord has provided Tenant with Landlord’s proposed determination of Fair Market Value for comparable office/research and development projects the Premises in order to agree on the Brisbane/Peninsula market as Minimum Annual Rent during such extended term. If the parties fail to agree on the Minimum Annual Rent for such extended term during that period, then (i) either party may elect to terminate this Lease at the end of the date Tenant exercises applicable term or (ii) the respective Option, increased on each annual anniversary of parties may agree to determine the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketFair Market Rental through an appraisal. In the event that the parties elect to establish the Fair Market Rental through an appraisal process, Landlord and Tenant disagree as to the FMV, they shall hire an each appoint one appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine within thirty (930) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondays thereafter; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, thatthat if either party fails to designate an appraiser within the time period specified, for purposes of this Subsection 42.4(b), Landlord then the appraiser who is designated shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In conclusively determine the event that Tenant has committed a Default Fair Market Rental. If two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Optionappraisers are designated, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option then they shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) submit within thirty (30) days after the date second thereof has been designated their appraisals of the Fair Market Rental. Landlord gives notice and Tenant intend that the "Fair Market Rental" shall be deemed to Tenant be the rentable square feet of industrial space that is then being charged for industrial space located in industrial buildings in the vicinity of the greater Phoenix industrial market that are comparable in quality and offer similar amenities to the Premises and involving arms length, new leases with similar terms and conditions, taking into account the savings to the Landlord in putting a new tenant into possession of the Premises and all concessions offered in such default other arms length new leases in the market (including without limitation free rent, tenant improvement allowances, leasing commissions, and moving allowances). The spaces used for comparison shall be comparable in size, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord's expense, and the financial strength of Tenant, and, if available, shall factor uses similar to Tenant’s permitted Use as set forth in Article 1(i) of this Lease. Should the two appraisers be unable to agree within said thirty (30) days, the two appraisers shall each submit an independent written appraisal and together they shall designate one (1) additional person as appraiser within five (5) days following the expiration of said thirty (30) day period; provided however, that if the difference between the two appraisals is five percent (5%) or less of the lowest appraisal, then an additional appraiser shall not be designated and the Fair Market Rental shall equal the average of the two (c2) Tenant has defaulted under this Lease appraisals that are submitted. The third appraiser shall submit an independent written appraisal within thirty (30) days following his or her appointment. If the two appraisers cannot agree upon a third appraiser, then either party hereunder may request that the presiding Judge of the Maricopa County Superior Court appoint such third appraiser. The Fair Market Rental shall be equal to the average of the two (2) written appraisals which are closest, and third (3rd) appraisal shall be disregarded. Each party shall bear the costs of the appraiser appointed by it. If three (3) appraisers are appointed, each party shall bear the cost of the appraiser appointed by it and the parties shall share equally in the cost of the third appraiser. No person shall be appointed or more times designated an appraiser unless he or she is (i) an independent appraiser who is a currently certified member of the American Institute of Real Estate Appraisers (with MM designation) and unless he or she has at least five (5) years experience as an appraiser in Maricopa County, or (ii) a service real estate broker with at least ten (10) years experience in leasing of commercial office space in the vicinity of the Premises. The third appraiser shall not have ever been employed (full-time or late charge under Section 24.1 part-time or on a consulting basis) by Landlord or Tenant. In the event that the Fair Market Rental is not established before the commencement of the extended term, Tenant shall continue to pay the Minimum Annual Rent in effect as of the end of the original term; when the Fair Market Rental has become payable for been established, the new Minimum Annual Rent shall be retroactively effective as of the beginning of the extended term, and Tenant shall pay Landlord any such default, whether or not deficiency with in thirty (30) days after the establishment of the new Minimum Annual Rent. If Tenant has cured overpaid the Minimum Annual Rent during such defaultsperiod, such overpayment shall be offset against rent thereafter coming due. Notwithstanding the foregoing, if either Landlord or Tenant is not satisfied with the Fair Market Rental determined by the appraisal process, such party may elect to terminate this Lease at the end of the applicable term by providing written notice to the other party within ten (10) days after the Fair Market Rent is determined by the appraiser(s).
Appears in 1 contract
Samples: Lease Agreement (Shutterfly Inc)
Options to Extend Term. Subject to the terms of this Article 37, the Term may be extended, at the option of Tenant, for *** successive periods of *** years each, each such period being herein sometimes referred to as an "Extended Term" (and constituting part of the "Term"), as follows:
(A) Each option to extend the Term for an Extended Term must be exercised by Tenant by (1) delivery to Landlord, not more than *** months and not less than *** months, prior to the commencement of the applicable Extended Term, of a non-binding written notice of Tenant's good faith intent to exercise such option and (2) delivery to Landlord of a binding written notice exercising such option no less than *** months prior to the commencement of the applicable Extended Term; provided, however, in no event shall such binding written notice be required to be delivered earlier than fifteen (15) days after the final determination of Extension Term Rent pursuant to Paragraph (D) below and, if applicable, Article 38 hereof. Tenant shall not have options the right to extend the Term beyond the last day of the *** full calendar month of the ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. Term (eachas extended pursuant to this Article 37). Any termination of this Lease or any termination of Tenant's right of possession hereunder during the initial Term hereof or during an Extended Term shall terminate all rights to extend granted hereunder. If Tenant shall fail to give Landlord timely notice of its exercise of an option herein contained or, an “Option”in the case of the second option to extend, if Tenant shall fail to exercise such first option to extend, Tenant shall be deemed to have waived such option to extend the Term hereof and such option and subsequent option, if any, shall thereupon become null and void.
(B) Each Extended Term shall be on the same terms, covenants and conditions of this Lease, except for the provisions of Articles 33, 34, 35 and 39 hereof, and except for the determination of Base Rent as hereinafter provided. The provisions of Article 4 hereof providing for the payment of rent adjustments with respect to increases in Operating Expenses and Ownership Taxes shall be applicable to any Extended Term, provided that the Base Year used in the calculation of such rent-adjustments in any Extended Term shall be the calendar year in which such Extended Term begins. --
(C) The Base Rent during any Extended Term (herein referred to as "Extension Term Rent") shall be at a rate equal to the Fair Market Rent (as defined in Article 38 hereof) during each Extended Term, which Fair Market Rent shall be calculated in advance but as of the first day of the applicable Extended Term rather than as of the date such calculation is made; provided, however, that the calculation so made shall be final and shall not be remade on the first day of any such Extended Term. The calculation shall reflect the full length of the Extended Term, and shall be recalculated for any subsequent Extended Term.
(D) Landlord shall provide Tenant with Landlord's calculation of Fair Market Rent, no later than one month after delivery of Tenant's non-binding written notice under Paragraph (A) above. If Tenant notifies Landlord in writing within ten (10) days after delivery of Landlord's calculation of the Fair Market Rent that Tenant contests Landlord's calculation and the parties cannot within ten (10) days after delivery of such notice by Tenant ("the Negotiation Period") reach agreement on the Fair Market Rent payable during any such Extended Term, then the Fair Market Rent shall be determined in accordance with the procedures set forth in Article 38 hereof.
(E) Tenant may extend the Term only as to all of the Premises as are demised to Tenant on the date of Tenant's exercise of such applicable option to extend.
(F) Tenant's rights to exercise its option to extend the Term of this Lease for any Extended Term are subject to the condition that Tenant is not in monetary default or in default under any of the other material terms, covenants or conditions of this Lease at the time that Tenant delivers its written notice to Landlord of the exercise of any such option to extend for an Extended Term, or upon the following terms and conditions:commencement of such Extended Term unless Landlord, in its absolute discretion, elects in writing to waive such condition to the effective exercise of the opt-- ion (provided the foregoing shall not affect or limit Landlord's rights to enforce any defaults of Tenant pursuant to Article 15 hereof). Notwithstanding the foregoing, if the existence of any such default shall, pursuant to the foregoing, make ineffective the exercise of such option, such exercise shall nevertheless become effective as of the originally scheduled date if such default is cured within the earlier of (i) any applicable cure or grace period specified in Article 15 hereof or (ii) thirty (30) days after delivery of notice of such default by Landlord to Tenant.
42.1. (G) In the event Tenant exercises any option pursuant to this Article 37, Tenant shall have two accept the Premises in "as is" condition.
(2H) consecutive Options In the event Tenant exercises any option pursuant to this Article 37, Tenant and Landlord agree to enter into an amendment to this Lease setting forth the terms applicable to such Extended Term within ninety (90) days after the date Tenant gives binding notice of its exercise of an option to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesExtended Term.
42.2(I) The options to extend granted pursuant to this Article 37 are personal to 21st Century Cable TV, Inc. (and any Successor or Affiliate to whom this entire Lease has been assigned in compliance with Article 12) and may not be exercised by or for the benefit of any other party. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions Any termination of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability 's right to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted possession under this Lease three (3) or more times shall extinguish and a service or late charge cancel all rights of Tenant under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsthis Article 37.
Appears in 1 contract
Options to Extend Term. Provided that Landlord has not given Tenant notice of default more than two (2) times in the twelve (12) month period immediately preceding the Expiration Date, and that there then exists no event of default by Tenant under this lease Tenant shall have options (each, an “Option”) the right and option to extend the Term for one (1) additional period of this Lease upon sixty (60) months and one (1) additional period of fifty-four (54) months thereafter, exercisable by giving Landlord prior written notice, at least twelve (12) months in advance of the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options Expiration Date or the first extended Expiration Date, as the case may be, of Tenant's election to extend the Term Term; it being agreed that time is of this Lease by three the essence and that these options are personal to Tenant and any assignee for whom Landlord's consent is not required under subsection 18(a) and are non-transferable to any other assignee or any sublessee (3regardless of whether any such assignment or sublease was made with or without Landlord's consent) years each on or other party. Any such extension shall be under the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything provided in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Optionlease except as follows:
(a) During the time commencing from first additional period shall begin on the Expiration Date and thereafter the Expiration Date shall be deemed to be the date Landlord delivers which is sixty (60) months after the Expiration Date, and the second additional period shall begin on the first extended Expiration Date and thereafter the Expiration Date shall be deemed to Tenant a written notice that Tenant be the date which is in default under any provisions of this Lease and continuing until Tenant has cured fifty-four (54) months after the specified default to Landlord’s reasonable satisfaction; orfirst extended Expiration Date;
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord there shall not be required no further options to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being curedextend; orand
(c) In The minimum annual rent for the event that first year of each additional term shall be equal to the greater of (i) the minimum annual rent then being paid by Tenant hereunder, or (ii) the fair market rental value of the Premises, determined pursuant to subsection (d) hereof. The minimum annual rent for each year of each additional term after the first year of such additional term shall increase by 2% over the minimum annual rent paid by Tenant in the immediately preceding lease year.
(d) For purposes of this Section 31, if Landlord and Tenant cannot agree as to the fair market rental value within ninety (90) days after receipt of Tenant's notice to Landlord under subsection 31(a), the fair market rental value shall be determined by appraisal, which, if Tenant has committed received a Default two rent reduction pursuant to subsection 65(a) of this Rider, shall take into consideration, among other things, the necessity for Tenant's Agents to use the Off-Site Parking (2as hereinafter defined). Within ten (10) or more times and a service or late charge has become payable under Section 24.1 for each days after the expiration of such Defaults during the twelve ninety (12)-month period immediately prior 90) day period, Landlord and Tenant shall give written notice to the date other setting forth the name and address of an appraiser designated by the party giving notice. All appraisers selected shall be members of the American Institution of Real Estate Appraisers and shall have had at least ten (10) years continuous experience in the business of appraising office buildings in the greater Philadelphia, Pennsylvania area. If either party shall fail to give notice of such designation within the time period provided, then the party who has designated its appraiser (the "Designating Party") shall notify the other party (the "Non-Designating Party") in writing that the Non-Designating Party has an additional ten (10) days to give notice of its designation, otherwise the appraiser, if any, designated by the Designating Party shall conclusively determine the fair market rental value. If two appraisers have been designated, such appraisers shall attempt to agree upon the fair market rental value. If the two appraisers do not agree on the fair market rental value within twenty (20) days of their designation, the two appraisers shall designate a third appraiser. If the two appraisers shall fail to agree upon the identity of a third appraiser within five (5) business days following the end of such twenty (20) day period, then either Landlord or Tenant intends may apply to exercise the OptionAmerican Arbitration Association, whether or not Tenant cures such Defaults within any applicable cure period.
42.5successor thereto having jurisdiction, for the settlement of the dispute as to the designation of the third appraiser and the American Arbitration Association shall designate a third appraiser in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association. The period three appraisers shall conduct such hearings as they may deem appropriate, shall make their determination of time within which Tenant may exercise an Option fair market rental value in writing and shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay give notice to Landlord a monetary obligation and Tenant of Tenant for a period of such determination within twenty (20) days after written notice from the appointment of the third appraiser. If the three appraisers cannot agree upon the fair market rental value, each appraiser shall submit in writing to Landlord and Tenant the fair market rental value as determined by such appraiser. The fair market rental value for the purposes of this paragraph shall be equal to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant arithmetic average of the two closest fair market rental values submitted by the appraisers. Each party shall pay its own fees and expenses in connection with any appraiser selected by such default or (c) Tenant has defaulted party under this Lease three (3) or more times paragraph, and a service or late charge under the parties shall share equally all other expenses and fees of the arbitration, including the fees and expenses charged by the third appraiser. The fair market rental value as determined in accordance with the provisions of this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsshall be final and binding upon Landlord and Tenant.
Appears in 1 contract
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by the greater of 75% of the U.S. Consumer Price Index ("CPI") or three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five quarter percent (953.25%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this Lease.
42.4Extension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (c) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or and such defaults were not Tenant cures such Defaults cured within any the applicable cure period.
42.5. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.4.
42.6. All of Tenant’s rights under 3.2, then the provisions of the Extension Option shall terminate terminate, and shall be null and void and of no further force and effect. If this Lease or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior 's right to the commencement date possession of the new termPremises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, (a) or if Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default shall have assigned or (c) Tenant has defaulted under transferred any interest in this Lease three or sublet any part of the Premises (3) except pursuant to a Permitted Transfer, as defined below), then immediately upon such termination, assignment, transfer or more times sublease, the Extension Option shall simultaneously terminate and a service or late charge under become null and void. Time is of the essence with regard to this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults3.2.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. 22.01. Provided that Tenant shall not then be in default with respect to any material covenant of this lease beyond the expiration of the applicable grace period, if any, Tenant shall have options (each, an “Option”) the option to extend the term of this lease for an additional period of ten (10) years (the "Extended Term"); provided, however, that (a) Tenant shall notify Landlord not earlier than twenty-four (24) months and not later than the date which is eighteen (18) months prior to the then Expiration Date that Tenant desires such extension and (b) such extension shall be on the same terms, covenants and conditions as are contained in this lease, except with respect to (1) the annual Fixed Rent which shall be determined in the manner provided for in Section 22.02, (ii) such provisions in this lease which apply only to the initial term, and (111) the option herein granted to extend the initial term of this lease.
(a) Fixed Rent payable by Tenant during the Extended Term of this Lease upon lease shall be equal to $2,600,00 per annum, subject to the following terms and conditions:CPI Adjustments hereinafter described.
42.1. Tenant shall have two (2b) consecutive Options If the term is extended pursuant to extend Section 22.01 hereunder, the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) first day of the fair market value Extended Term shall be the Fifth CPI Adjustment Date. The initial fixed rent for the extended term shall be equal to (“FMV”Fifth Adjustment CPI) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual $2,600,000 per annum X -------------------- Beginning CPI
(c) The seventh anniversary of the commencement date of each extended term by such percentagethe Extended Term shall also be a CPI Adjustment Date (the "Sixth CPI Adjustment Date"). If the CPI for the Sixth CPI Adjustment Date has increased over the CPI for the Fifth CPI Adjustment Date, if any, that constitutes a market rate annual increase then the fixed rent for such market. In the event that Landlord and Tenant disagree remainder of the Extended Term shall equal Sixth Adjustment CPI Fixed Rent as to of the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Fifth CPI Adjustment Date [1+.6 X ( --------------------- - 1)] Fifth Adjustment CPI Notwithstanding anything in this Lease to the contrary, Tenant the Fixed Rent during the Extended Lease shall not assign never be less than $2,600,000 per annum.
Section 29.01 of the Lease is hereby deleted and restated in its entirety to read as follows:
29.01. Landlord and its authorized representatives shall have the light, upon reasonable advance notice to Tenant, to enter the Demised Premises or transfer an Optionany part or parts thereof, either separately or in conjunction with an assignment or transfer during Business Hours, accompanied by a duly authorized representative of Tenant’s interest in . If Tenant makes such representative available: (i) to examine the Demised Premises to ascertain if Tenant has performed its obligations under this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election lease- (11) to exercise show the applicable Option at least nine Demised Premises to prospective purchasers or mortgagee; (9iii) during the period commencing eighteen (18) months prior to the end of the expiration of the then-current Term term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, lease (if Tenant shall not have exercised the right applicable option to exercise an Option:
extent the term pursuant to Article XXII), to show the Demised Premises to prospective tenants; (aiv) During for the time commencing from purpose of making such repairs in or to the date Demised Premises as may be provided for by this lease or as may be mutually agreed upon by the parties; and (v) to conduct such environmental and engineering tests and studies as Landlord delivers to Tenant reasonably deems necessary or appropriate in connection with a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 prospectus or actual sale or refinancing of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), property. Landlord shall not be allowed to take all materials into the Demised Premises that may be required for such repairs and actions. Landlord's rights under this Section 29.01. shall be exercised in such manner as to provide Tenant cause the least practicable interference with notice Tenant's use and occupancy of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodDemised Premises.
42.511. The period of time within which Tenant may exercise an Option Article XXXI shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4deleted in its entirety.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Agreement of Lease (Rayovac Corp)
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five quarter percent (953.25%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this Lease.
42.4Extension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (c) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or and such defaults were not Tenant cures such Defaults cured within any the applicable cure period.
42.5. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.4.
42.6. All of Tenant’s rights under 3.2, then the provisions of the Extension Option shall terminate terminate, and shall be null and void and of no further force and effect. If this Lease or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior 's right to the commencement date possession of the new termPremises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, (a) or if Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default shall have assigned or (c) Tenant has defaulted under transferred any interest in this Lease three or sublet any part of the Premises (3) except pursuant to a Permitted Transfer, as defined below), then immediately upon such termination, assignment, transfer or more times sublease, the Extension Option shall simultaneously terminate and a service or late charge under become null and void. Time is of the essence with regard to this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults3.2.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant shall have (a) Lessee hereby grants to Lessee two (2) separate options (each, an “Option”the "Options") to extend the Term term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two for a period of five (2) consecutive Options to extend the Term of this Lease by three (35) years each on beyond the same terms and conditions originally scheduled termination date (each such 5-year period being referred to herein as this Leasethe "Option Term"). Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentageThe Option must be exercised, if anyat all, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election (the "Option Notice") delivered by Lessee to exercise the applicable Option at least nine Lessor not later than twelve (912) months prior to the end of the expiration of initial Term or the then-current Term of this Lease.
42.4first Option Term; as applicable. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease Provided Lessee has properly and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; ortimely
(b) At any time after an event of Default as described in Section 24 The monthly Base Rent payable during the first Option Term shall be equal to 95% of the Lease (providedfair market rental value of the Premises, howeverand during the Second Option Term shall be equal to 100% of the fair market rental value of the Premises, thatin each case multiplied by the number of rentable square feet therein, for purposes immediately prior to the commencement of this Subsection 42.4(bthe Option Term, as determined herein. Fair market rental value shall be determined as provided in Subparagraph 54(c), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; orbelow.
(c) In As used in this Lease, "fair market rental value" at any point in time shall mean the event that Tenant has committed a Default two "effective rate" of monthly rent per square foot being charged by landlords to non-expansion, non-affiliated and non-renewal tenants, at such point in time (2i) or more times for office space in Comparable Buildings which is comparable in size, type, location, configuration, quality, view and a service or late charge has become payable under Section 24.1 for each degree of such Defaults during the twelve (12)-month period immediately prior leasehold improvement to the date Premises and (ii) for a lease term of substantially the same duration as the Option Term ("Comparable Leases"). The "effective rate" shall take into account rent or equivalent economic concessions being given, tenant improvement allowances (taking into account the level and quality of existing tenant improvements in the Premises and in the office space being offered in Comparable Leases, but giving Lessee due credit for the then value of tenant improvements installed in the Premises by Lessee over and above those paid for with the Tenant Improvement Allowance, as defined in Exhibit C) and brokerage commissions. Provided that Tenant intends to exercise Lessee shall have properly exercised the Option, whether or Lessor shall provide written notice of its estimate of fair market rental value (the "Estimate") to Lessee not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but later than six (6) months prior to the commencement date of the new term, Option Term. Lessee shall have sixty (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2060) days ("Lessee's Review Period") after written notice from Landlord receipt of Lessor's Estimate, within which to Tenantaccept such Estimate as fair market rental value or to object thereto in writing. In the event Lessee objects to the Estimate submitted by Lessor, (b) Tenant fails Lessor and Lessee shall attempt in good faith to commence agree upon the fair market rental value. If Lessor and Lessee fail to cure a default (other than a monetary default) reach agreement on such fair market rental value within thirty (30) days after following Lessee's Review Period (the date Landlord gives notice "Outside Agreement Date"), then each party shall submit its full estimate, and if Lessee's estimate of fair market rental value is within five percent (5%) of the Estimate, the average of the two figures shall be deemed the fair market rental value for purposes of this Paragraph. If Lessor's and Lessee's respective estimates of fair market rental value are not within five percent (5%) of each other, then Lessee's estimate and the Estimate shall be submitted to Tenant of such default or (cappraisal in accordance with Subparagraph 54(d) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsbelow.
Appears in 1 contract
Samples: Lease (Citadel Holding Corp)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninety-five percent (95%) of the then-current fair market value for comparable office and laboratory space in the Seattle Central Business District and South Lake Union submarket of comparable age, quality, level of finish and proximity to amenities and public transit, and containing the systems and improvements present in the Premises as of the date that Tenant gives Landlord written notice of Tenant’s election to exercise such Option (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than fifteen (15) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of each extended term by the FMV for the next Option term. Landlord shall, within thirty (30) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant market, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Project. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Seattle Central Business District and Tenant disagree as to South Lake Union laboratory/research and development leasing market (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Seattle Central Business District and South Lake Union submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. On a day determined by the Baseball Arbitrator each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV, along with not more than ten (10) pages of supporting documentation and/or other evidence or explanation. After reviewing the written materials the Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit additional evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall The Option is not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection Section 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Lyell Immunopharma, Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to further extend the Lease Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant Any extension of the Lease Term pursuant to an Option shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each be on all the same terms and conditions as this the Lease. Basic Annual , except as follows:
6.1 Monthly Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the Sorrento Mesa submarket of comparable age, quality, level of finish and proximity to amenities and public transit, and containing systems and improvements similar to those present in the Premises as of the date that Tenant gives Landlord written notice of Tenant’s election to exercise such Option (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than thirteen (13) months prior to the date the Lease Term is then scheduled to expire, request Landlord’s estimate of each extended term by the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such marketnotice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant gives written notice to exercise an Option but does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the Sorrento Mesa submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Sorrento Mesa laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Sorrento Mesa submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the Baseball Arbitrator’s view of the actual FMV. The Baseball Arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both parties.
42.2upon Landlord and Tenant and shall serve as the basis for determination of Monthly Rent payable for the applicable Option term. Notwithstanding anything in this Lease to If, as of the contrarycommencement date of an Option term, the amount of Monthly Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Monthly Rent equal to the Monthly Rent payable with respect to the year immediately preceding the commencement date of the Option term that is then commencing (such amount, the “Temporary Monthly Rent”). After the final determination of Monthly Rent payable for the Option term, the parties shall promptly execute a written amendment to the Lease specifying (y) the amount of Monthly Rent to be paid during the applicable Option term and (z) if applicable, the process for the refund or credit to Tenant if the final determined Monthly Rent of the Option Term is less than the Temporary Monthly Rent, or payment to Landlord if the final determined Monthly Rent is greater than the Temporary Monthly Rent, in each case of the excess or shortfall between the final determined Monthly Rent during the Option Term and the Temporary Monthly Rent, respectively. Any failure of the parties to execute such amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of Tenant’s interest in the FMV determined pursuant to this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretionSection.
42.3. The Options are 6.2 No Option is assignable separate and apart from the Lease.
6.3 An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Lease Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.4. 6.4 Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default with respect to Tenant’s payment obligations or is in material non-monetary default under any provisions of this the Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactionsuch default; or
(b) At any time after an event of any Default as described in Section 24 Article 22 of the Original Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under the Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not unless Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.5. 6.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.46.4 of this Amendment.
42.6. 6.6 All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this the Lease three two (32) or more times and a service or late charge under Section 24.1 5.3 of the Original Lease has become payable for any such default, whether or not unless Tenant has cured such defaults.
6.7 Notwithstanding anything to the contrary, any and all rights of Tenant under the Existing Lease to extend the Lease Term (including, without limitation, the rights set forth in Article 4 of the Original Lease) are hereby deleted from the Existing Lease in their entirety, and shall no longer be of any further force or effect.
Appears in 1 contract
Samples: Single Tenant Absolute Net Lease (Quidel Corp /De/)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
41.1. Basic Annual Base Rent at the commencement of an Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the Watertown area of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, shall be further increased on each annual anniversary of the Option commencement of each extended date during an Option term by two and seventy-five hundredths percent (2.75%). Tenant may, no more than twelve (12) months prior to the date the Term is then scheduled to expire, request Landlord’s estimation of the FMV of the Premises for the next applicable extension term. Landlord shall, within fifteen (15) days after such percentagerequest, if anygive Tenant a written proposal of the FMV for the applicable extension term. If Tenant gives written notice to exercise its Option, that constitutes a market rate annual increase for such notice shall specify whether Tenant accepts Landlord’s proposed estimation as the Base Rent. If Tenant does not accept such proposed Base Rent, then the parties shall endeavor to agree upon the FMV of the Premises as of the first day of the applicable extension term. In determining the FMV, the parties shall take into account all relevant factors, including, without limitation, (a) the size of the Premises and length of the Option, (b) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, and moving allowances, (c) Tenant’s creditworthiness and (d) the quality and location of the Building and the Project. In the event that Landlord the parties are unable to agree upon the FMV within thirty (30) days after Tenant gives written notice to exercise its Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Watertown area laboratory/research and Tenant disagree as to development leasing market (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the Boston Chapter of the American Arbitration Association or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the President of the AAA shall (a) have at least ten (10) years’ experience in the leasing of office and laboratory/research and development space in the Watertown area and (b) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Landlord and Tenant shall each submit to the Baseball Arbitrator and to the other its determination of the FMV. The Baseball Arbitrator shall afford to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) rent determinations more closely represents the FMV of the Premises. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The determination of the party so selected or designated shall be binding on both parties.
42.2upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. Notwithstanding anything in this Lease to If, as of the contrarycommencement date of the applicable Option term, the amount of Base Rent payable during the applicable Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable in respect of the last year of the then-current Term. After the final determination of Base Rent payable for an Option term, the parties shall promptly execute a written agreement specifying the appropriate amount of Base Rent. Any failure of the parties to execute such written amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of Tenant’s interest in the Base Rent as so determined.
41.2. No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.341.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise such Option (the applicable “Option Notice”) at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.441.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.541.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.641.6. All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three two (32) or more times and a service or late charge under Section 24.1 31.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Organovo Holdings, Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent during each Option term (including annual escalations, if any) shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office space in the Rockville, Maryland submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”). Tenant may, no more than twelve (12) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable office/research and development projects buildings in the Brisbane/Peninsula market relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the date Tenant exercises Building and the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketProject. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord and that Tenant disagree is exercising an Option, then either party may request that the same be determined as to follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the FMVRockville, they shall hire an appraiser reasonably acceptable to both parties, Maryland office leasing submarket (the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of office space in the Rockville, Maryland submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term and any overpayment or underpayment of Base Rent for the Option term prior to such determination shall be adjusted between the parties. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection Section 42.4(b), Landlord shall not be required to provide Tenant with a separate notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two defaulted in the performance of its obligations under this Lease three (23) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (REGENXBIO Inc.)
Options to Extend Term. (i) Subject to the provisions of Sections 60E and 60I hereof, Tenant shall have options (each, an “Option”) the right to extend the term of this Lease, with respect to (at Tenant’s election) (x) the entire Demised Premises or (y) a portion of the Demised Premises consisting of one or more contiguous whole floors, for one (1) additional term of five (5) years (the “Extension Term”), commencing on the day immediately following the Expiration Date (the “Extension Term Commencement Date”) and ending on the day preceding the fifth (5th) anniversary of such Extension Term Commencement Date, provided that:
(a) Tenant shall give Owner written notice (hereinafter called the “Extension Notice”) of its election to extend the term of this Lease upon for an Extension Term at least twelve (12) months (but no more than twenty-four (24) months) prior to the following terms then-applicable Expiration Date;
(b) The Extension Notice states Tenant’s irrevocable election of clause (x) or clause (y) above (but in no event any partial floors) and conditions:whether Tenant elects to include the Basement Space;
42.1. (c) Tenant shall have two (2) consecutive Options to extend the Term of is not in default under this Lease by three beyond the expiration of applicable notice and cure periods as of the time of the giving of the Extension Notice; and
(3d) years each on As of the same terms Extension Term Commencement Date, the Tenant named herein or a related corporation or successor corporation thereof shall be the “Tenant” under this Lease and conditions as this Lease. Basic no portion of the Demised Premises for which the extension is elected shall be sublet (except to a related corporation or successor corporation of the Tenant named herein).
(ii) The Fixed Annual Rent payable by Tenant to Owner during the Extension Term (the “Extension Term Fixed Rent”) shall be equal to ninety-five percent (95%) of the fair market value (“FMV”) rent for comparable office/research and development projects in the Brisbane/Peninsula market applicable portion of the Demised Premises, determined as of the date occurring six (6) months prior to the Extension Term Commencement Date. The Extension Term Fixed Rent shall be determined initially by Owner in a notice to Tenant exercises the respective Option(herein called “Owner’s Rent Notice”), increased on each annual anniversary which notice shall contain Owner’s determination of the commencement Extension Term Fixed Rent, and which notice shall be delivered to Tenant not later than sixty (60) days after Tenant’s giving of the Extension Notice.
(iii) In determining the Extension Term Fixed Rent (as well as for purposes of computing the amounts payable by Tenant under Article 38 during the Extension Term), Owner, Tenant and any arbitrator shall assume or take into consideration as appropriate all of the following: (A) Owner and Tenant are typically and similarly motivated; (B) Owner and Tenant are well informed and well advised and each extended term is acting in what it considers its own best interest; (C) no time will be necessary for exposure of the applicable portion of the Demised Premises on the open market or for possible vacancy before the same is relet; (D) the rent is unaffected by such percentagespecial financing amounts and/or terms, if anyor unusual services, fees, costs or credits in connection with the leasing transaction; (E) the applicable portion of the Demised Premises is fit for immediate occupancy and use “as is” and require no additional work or contribution by Owner; (F) in the event the Demised Premises have been destroyed or damaged by fire or other casualty, they have been fully restored to the extent required under this Lease; (G) that the applicable portion of the Demised Premises is to be let with vacant possession and subject to the provisions of this Lease (including without limitation, that constitutes a the Base Real Estate Taxes and Base Wage Rate are the same as that set forth in Article 38 of the Lease), except that Tenant’s Percentage shall be appropriately adjusted to reflect the portion of the Demised Premises to be demised during the Extension Term; (H) market rate annual increase rents then being charged for comparable space in other similar office buildings in the same area; (I) that there will be no work allowance or other work concession, all as more particularly provided in Section 60D; and (J) all other relevant factors.
(i) If Tenant fails to dispute the amount of the Extension Term Fixed Rent specified in Owner’s Rent Notice within forty-five (45) days after the giving of such marketnotice, time being deemed of the essence, then Owner’s determination of Extension Term Fixed Rent set forth in Owner’s Rent Notice shall be conclusive. If Tenant shall duly and properly dispute the amount of the fair market rent specified in Owner’s Rent Notice by notice delivered to Owner (the “Notice of Dispute”) not later than forty-five (45) days after the giving to Tenant of Owner’s Rent Notice, then Owner and Tenant shall endeavor in good faith to agree as to the amount of the Extension Term Fixed Rent during the thirty (30) day period following the giving of Tenant’s Notice of Dispute. In the event that Landlord Owner and Tenant disagree cannot agree as to such amount within such thirty (30) day period, then Owner or Tenant may initiate the FMV, they shall hire an appraiser reasonably acceptable arbitration process provided for herein by giving notice to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as that effect to the FMV shall be binding on both parties.
42.2. Notwithstanding anything other (such initiating party hereinafter called the “Initiating Party”) and specifying in this Lease to such notice the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole name and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end address of the expiration of arbitrator designated by the then-current Term of this Lease.
42.4Initiating Party to act on its behalf. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of Within twenty (20) days after written the designation of the arbitrator by the Initiating Party, the other party hereto shall give notice from Landlord to Tenant, (b) Tenant the Initiating Party specifying the name and address of the arbitrator designated to act on its behalf. If the other party fails to commence notify the Initiating Party of the appointment of its arbitrator within such twenty (20) day period, the appointment of the second arbitrator shall be made in the same manner as hereinafter provided for the appointment of a third arbitrator in the case where the two arbitrators appointed hereunder are unable to cure a default agree upon such appointment. The two arbitrators so chosen shall meet within ten (other than a monetary default10) days after the second arbitrator is appointed and if, within thirty (30) days after the second arbitrator is appointed, the two arbitrators shall not agree upon a determination in accordance with Section 60B(iii) they shall together appoint a third arbitrator (which third arbitrator shall not have been employed by either party or their affiliates during the period of two (2) years prior to the date Landlord gives of the arbitration proceeding). If said two arbitrators cannot agree upon the appointment of a third arbitrator within ten (10) days after the expiration of such thirty (30) day period, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period often (10) days. If the parties do not so agree, then either party, on behalf of both and on notice to Tenant the other, may request such appointment by the American Arbitration Association (or any successor organization) in accordance with its then prevailing rules. If the American Arbitration Association shall fail to appoint said third arbitrator within fifteen (15) days after such request is made, then either party may apply, on notice to the other, to the Supreme Court, New York County, New York (or any other court having jurisdiction and exercising functions similar to those now exercised by the foregoing court) for the appointment of such default third arbitrator. Upon the appointment of the third arbitrator, the arbitrators shall give written notice thereof to Owner and Tenant.
(ii) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of first class office buildings in the Borough of Manhattan. Each party shall pay the fees and expenses of the arbitrator appointed by or for such party. The fees and expenses of the third arbitrator and all other expenses (not including the attorneys’ fees, witness fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne equally by the parties hereto.
(iii) Within five (5) days after receiving notice of the appointment of the third arbitrator, each of Owner and Tenant shall submit to the arbitrators its written proposal of the Extension Term Fixed Rent (it being agreed that Owner’s submission may be more than, equal to or less than the amount set forth in Owner’s Rent Notice). Each arbitrator shall render its decision as to the Extension Term Fixed Rent (which may be only the proposal submitted by Owner or the proposal submitted by Tenant, and not any other amount) within twenty (20) days after the appointment of the third arbitrator and shall furnish a copy thereof to both Owner and Tenant. The decision of the majority of the arbitrators shall be conclusively determined to be the Extension Term Fixed Rent. In rendering such decision and award, the arbitrators shall not modify the provisions of this Lease (including, without limitation, the provisions of Section 60A(iii)). The decision and award of the arbitrators shall be in writing and be final and conclusive on all parties and counterpart copies thereof shall be delivered to each of said parties. Judgment in any court of competent jurisdiction may be had on the decision and award of the arbitrators so rendered.
C. In the event Owner or Tenant initiates the arbitration process pursuant to Section 60B hereof and as of the applicable Extension Term Commencement Date the amount of the Extension Term Fixed Rent has not been determined, Tenant shall pay the amount of the Extension Term Fixed Rent originally set forth in Owner’s Rent Notice to Tenant, and promptly after such determination has been made, an appropriate retroactive adjustment, if necessary, shall be made as of the Extension Term Commencement Date.
D. Except as provided in Section 60A hereof, Tenant’s occupancy of the applicable portion of the Demised Premises during the Extension Term shall be on the same terms and conditions as were in effect as of the day prior to the Extension Term Commencement Date, provided, however, that (a) Tenant shall have no right to extend the term of this Lease beyond the day preceding the twenty (20) year anniversary of the Commencement Date, (b) Tenant shall not be entitled to any free rent or concessions with respect to any Extension Term (but such fact shall be considered in connection with the fair market rent determination) and (c) Owner shall not be required to perform any work or furnish any materials to prepare the Demised Premises for Tenant’s occupancy during any Extension Term (but such fact shall be considered in connection with the determination of Extension Term Fixed Rent).
E. If Tenant has defaulted under does not send an Extension Notice when and as required pursuant to the provisions of Section 60A hereof, this Article 60 shall have no further force or effect and shall be deemed deleted from this Lease. Time is of the essence as to the date for the giving of the Extension Notice. The termination of this Lease three (3) shall also terminate and render void any option or more times and a service or late charge under Section 24.1 has become payable for any such defaultright on Tenant’s part to extend the term of this Lease, whether or not such option or right shall have theretofore been exercised.
F. If Tenant has cured exercises its right to extend the term of this Lease for the Extension Term pursuant to this Article 60, then from and after the commencement of the Extension Term the term “Expiration Date” shall be deemed to be extended to the last day of the Extension Term, the term “the Term” and the phrases “the term of this Lease” or “the term hereof” as used in this Lease, shall be construed to include the Extension Term, the term “Demised Premises” shall be construed to include only the portion of the Demised Premises elected by Tenant in the Extension Notice and, if less than that originally demised hereunder, the term “Tenant’s Percentage” shall be appropriately adjusted.
G. If this Lease is renewed for the Extension Term, then, at the request of either party, each of Owner and Tenant agrees within ten (10) days after such defaultsrequest is made, to execute, acknowledge and deliver to the other an instrument in form and substance reasonably satisfactory thereto, confirming (i) the Extension Term Fixed Rent payable under this Lease pursuant to this Article 60, unless the Extension Term Fixed Rent is then being determined in accordance with the provisions of this Article 60, in which case each of Owner and Tenant agrees to execute, acknowledge and deliver a separate instrument confirming the Extension Term Fixed Rent as finally determined, (ii) the expiration date of the Extension Term, (iii) the portion of the Demised Premises demised during the Extension Term and the applicable new Tenant’s Percentage and (iv) the other modifications, if any, provided for in this Article 60, but no such instrument shall be required in order to make the provisions hereof effective.
H. Tenant covenants and agrees that upon exercising the Extension Term it will identify the Brokers, and only the Brokers, as its brokers for the Extension Term. The Brokers are intended to be third party beneficiaries of this Section 60H.
I. Notwithstanding any provision of this Article 60 to the contrary, if at any time prior to the delivery by Tenant to Owner of the Extension Notice Owner shall in good faith notify Tenant in writing that Owner intends to demolish the Building between the fifteen (15) and twenty (20) year anniversaries of the Commencement Date, then from and after receipt of such notice Tenant shall have no rights to extend the Term pursuant to this Article 60.
Appears in 1 contract
Samples: Office Lease (Atari Inc)
Options to Extend Term. Subject to the terms of this Article 37, the Term may be extended, at the option of Tenant, for /***/ successive periods of five (5) years each, each such period being herein sometimes referred to as an "Extended Term" (and constituting part of the "Term"), as follows:
(A) Each option to extend the Term for an Extended Term must be exercised by Tenant by (1) delivery to Landlord, not more than /***/ months and not less than *** months, prior to the commencement of the applicable Extended Term, of a non-binding written notice of Tenant's good faith intent to exercise such option and (2) delivery to Landlord of a binding written notice exercising such option no less than /***/ months prior to the commencement of the applicable Extended Term; provided, however, in no event shall such binding written notice be required to be delivered earlier than fifteen (15) days after the final determination of Extension Term Rent pursuant to Paragraph (D) below and, if applicable, Article 38 hereof. Tenant shall not have options the right to extend the Term beyond the last day of the /***/ full calendar month of the _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. Term (eachas extended pursuant to this Article 37). Any termination of this Lease or any termination of Tenant's right of possession hereunder during the initial Term hereof or during an Extended Term shall terminate all rights to extend granted hereunder. If Tenant shall fail to give Landlord timely notice of its exercise of an option herein contained or, an “Option”in the case of the second option to extend, if Tenant shall fail to exercise such first option to extend, Tenant shall be deemed to have waived such option to extend the Term hereof and such option and subsequent option, if any, shall thereupon become null and void.
(B) Each Extended Term shall be on the same terms, covenants and conditions of this Lease, except for the provisions of Articles 33, 34, 35 and 39 hereof, and except for the determination of Base Rent as hereinafter provided. The provisions of Article 4 hereof providing for the payment of rent adjustments with respect to increases in Operating Expenses and Ownership Taxes shall be applicable to any Extended Term, provided that the Base Year used in the calculation of such rent-adjustments in any Extended Term shall be the calendar year in which such Extended Term begins. --
(C) The Base Rent during any Extended Term (herein referred to as "Extension Term Rent") shall be at a rate equal to the Fair Market Rent (as defined in Article 38 hereof) during each Extended Term, which Fair Market Rent shall be calculated in advance but as of the first day of the applicable Extended Term rather than as of the date such calculation is made; provided, however, that the calculation so made shall be final and shall not be remade on the first day of any such Extended Term. The calculation shall reflect the full length of the Extended Term, and shall be recalculated for any subsequent Extended Term.
(D) Landlord shall provide Tenant with Landlord's calculation of Fair Market Rent, no later than one month after delivery of Tenant's non-binding written notice under Paragraph (A) above. If Tenant notifies Landlord in writing within ten (10) days after delivery of Landlord's calculation of the Fair Market Rent that Tenant contests Landlord's calculation and the parties cannot within ten (10) days after delivery of such notice by Tenant ("the Negotiation Period") reach agreement on the Fair Market Rent payable during any such Extended Term, then the Fair Market Rent shall be determined in accordance with the procedures set forth in Article 38 hereof.
(E) Tenant may extend the Term only as to all of the Premises as are demised to Tenant on the date of Tenant's exercise of such applicable option to extend.
(F) Tenant's rights to exercise its option to extend the Term of this Lease for any Extended Term are subject to the condition that Tenant is not in monetary default or in default under any of the other material terms, covenants or conditions of this Lease at the time that Tenant delivers its written notice to Landlord of the exercise of any such option to extend for an Extended Term, or upon the following terms and conditions:commencement of such Extended Term unless Landlord, in its absolute discretion, elects in writing to waive such condition to the effective exercise of the opt-- ion (provided the foregoing shall not affect or limit Landlord's rights to enforce any defaults of Tenant pursuant to Article 15 hereof). Notwithstanding the foregoing, if the existence of any such default shall, pursuant to the foregoing, make ineffective the exercise of such option, such exercise shall nevertheless become effective as of the originally scheduled date if such default is cured within the earlier of (i) any applicable cure or grace period specified in Article 15 hereof or (ii) thirty (30) days after delivery of notice of such default by Landlord to Tenant.
42.1. (G) In the event Tenant exercises any option pursuant to this Article 37, Tenant shall have two accept the Premises in "as is" condition.
(2H) consecutive Options In the event Tenant exercises any option pursuant to this Article 37, Tenant and Landlord agree to enter into an amendment to this Lease setting forth the terms applicable to such Extended Term within ninety (90) days after the date Tenant gives binding notice of its exercise of an option to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesExtended Term.
42.2(I) The options to extend granted pursuant to this Article 37 are personal to 21st Century Cable TV, Inc. (and any Successor or Affiliate to whom this entire Lease has been assigned in compliance with Article 12) and may not be exercised by or for the benefit of any other party. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions Any termination of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability 's right to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted possession under this Lease three (3) or more times shall extinguish and a service or late charge cancel all rights of Tenant under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsthis Article 37.
Appears in 1 contract
Options to Extend Term. Tenant shall have two (2) consecutive options (each, an “Option”) to extend the Term of this Lease (and, upon the exercise of any Option, the Term Expiration Date), for an additional five (5) years, as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend 46.1 Any extension of the Term of this Lease by three (3) years each pursuant to any Option shall be on all the same terms and conditions as this Lease, except as follows. Basic Annual Rent shall be adjusted on the first (1st) day of each renewal term and each one (1)-year anniversary date thereafter in accordance with Article 8. The Basic Annual Rent during the first year of each renewal term shall equal ninety-five the greater of: (a) Fair Market Value for the renewal term and (b) one hundred three percent (95103%) of the fair market value (“FMV”) for comparable office/research and development projects in then-current Basic Annual Rent at the Brisbane/Peninsula market as end of the date Tenant exercises then-current Term. Basic Annual Rent shall be subject to annual escalation as provided in Article 8 beginning on the respective Option, increased on each first (1st) annual anniversary of the commencement date of each extended term the respective Option period. “Fair Market Value” means the then-prevailing average annual rate being charged for comparable space in comparable buildings comparably located, taking into consideration all relevant factors, including, without limitation, location in the Project, the proposed lease term, the physical condition of the Premises (i.e., the existence of all the Tenant Improvements and the assumption that such Tenant Improvements are fully suitable and appropriate for the contemplated tenancy in their “as is” condition), the extent of the services provided or to be provided to the Premises, the status as a lease (as opposed to a sublease), contraction and expansion options, and the cost of operating expenses, utilities and other charges imposed by such percentage, if any, that constitutes a market rate annual increase for such marketLandlord. In the event that If Landlord and Tenant disagree as to cannot agree on the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, Fair Market Value for purposes of this Subsection 42.4(bany renewal term then they shall engage a mutually agreeable independent third party appraiser with at least ten (10) years’ experience in appraising the rental value of leased commercial premises (for office use) in the New York metropolitan area (the “Appraiser”). If the parties cannot agree on the Appraiser, Landlord each shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
within fifteen (c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2015) days after written notice from Landlord to Tenantsuch impasse appoint an Appraiser and, within fifteen (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (3015) days after the date appointment of both such Appraisers, those two Appraisers shall select a third. If either party fails to timely appoint an Appraiser, then the Appraiser the other party appoints shall be the sole Appraiser. Within fifteen (15) days after appointment of all Appraiser(s), Landlord gives notice and Tenant shall each simultaneously give the Appraisers (with a copy to Tenant the other party) its determination of Fair Market Value, with such default supporting data or information as each submitting party determines appropriate. Within ten (c10) Tenant has defaulted under this Lease three (3days after such submissions, the Appraisers shall by majority vote select either Landlord’s or Tenant’s Fair Market Value. The Appraisers may not select or designate any other Fair Market Value. The determination of the Appraiser(s) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsshall bind the parties.
Appears in 1 contract
Samples: Lease Agreement (Epicept Corp)
Options to Extend Term. (a) Landlord hereby grants to Tenant shall have two options (each, each an “Extension Option”) to extend the Term of this Lease for an additional term (the “Option Term”) of five (5) years each upon and subject to the following terms and conditions:
42.1conditions set forth in this Section. The Extension Options shall be exercised, if at all, consecutively by written notice given to Landlord not less than nine (9) months prior to the Expiration Date of the Term, in the case of the second Extension Option not less than nine (9) months prior to the Expiration Date of the Term as extended by the first Extension Option. Tenant shall have two (2) consecutive Options to extend may exercise the Term first Extension Option for either all or one-half of the Building, as designated in Tenant’s notice exercising such Extension Option. In the event that Tenant has exercised the first Extension Option for all of the Building, Tenant may exercise the second Extension Option for either all or one-half of the Building, as designated in Tenant’s notice exercising such Extension Option. In the event that Tenant has exercised the first Extension Option for only one-half of the Building Tenant may only exercise the second Extension Option for such one-half of the Building. If Tenant exercises an Extension Option, each of the terms, covenants and conditions of this Lease by three shall apply during the applicable Option Term as though the expiration date of the Option Term was the date originally set forth herein as the Expiration Date of the Term, provided that (3i) years each on the same terms Rent and conditions as this Lease. Basic Annual Rent Additional Charges to be paid during the applicable Option Term shall equal ninety-be ninety five percent (95%) of the fair market value (“FMV”) Prevailing Market Rental, as hereinafter defined, for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase Premises for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine Term, (9ii) months prior to the end Expiration Date for the Lease shall become the expiration date for the applicable Option Term; (iii) there shall be no additional option terms and (iv) if less than all of the expiration of Building has been leased for any Extension Option, the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of rentable area covered by this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described shall be recalculated in accordance with Section 24 of the Lease (provided2.1, provided however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In that the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.BOMA
Appears in 1 contract
Options to Extend Term. Landlord hereby grants to Tenant shall have two (2) options (each, Individually referred to hereinafter as an “"Option”" and collectively referred to hereinafter as the "Options") to extend the Term term of this Lease upon the following for additional consecutive terms and conditions:
42.1. Tenant shall have two of five (2) consecutive Options to extend the Term of this Lease by three (35) years and zero (0) months (each is called an "Extension"), on the same terms and conditions as set forth in this Lease. , except the Basic Annual Rent shall equal be the amount determined as set forth below. Tenant shall have the opportunity to exercise the initial Option with respect to only four (4) contiguous floors of the Premises. The second Option shall be exercised only with respect to the Premises so leased during the first Extension. Each Option shall be exercised only by written notice delivered to Landlord at least two hundred seventy (270) days before the expiration of the initial term of this Lease or the immediately preceding Extension ("Exercise Date"), as the case may be. If Tenant fails to deliver to Landlord written notice of the exercise of the Option within the time period prescribed above, such Option and any succeeding Options shall lapse, and there shall be no further right to extend the term of this Lease. Each Option shall be exercisable by Tenant on the express conditions that (i) at the time of the exercise of such Option, and thereafter at all times prior to the commencement of such Extension, a Tenant's Default shall not have occurred and be continuing under this Lease, and (ii) Tenant has not been ten (10) or more days late in the payment of Rent more than a total of nine (9) times during the term of this Lease. If Tenant property exercises an Option, "term", as used herein and in this Lease, shall be deemed to include the applicable Extension, unless specified otherwise herein. The Basic Annual Rent during each Extension shall be increased, as of the commencement of each Extension (each is called a "Rental Adjustment Date") to ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects "Fair Market Value" of the Premises, determined in the Brisbane/Peninsula market following manner: Not later than ninety (90) days prior to any applicable Exercise Date, Tenant shall give written notice to Landlord of its preliminary interest in the applicable Option, and thereafter Landlord and Tenant shall meet in an effort to negotiate, in good faith, the Fair Market Value of the Premises as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketapplicable Rental Adjustment Date. In the event that If Landlord and Tenant disagree as have not agreed upon the Fair Market Value of the Premises at least eighty (80) days prior to the FMVapplicable Exercise Date, they the Fair Market Value shall hire an be determined by the following appraisal method:
(i) If Landlord and Tenant are not able to agree upon the Fair Market Value of the Premises within the time period described above, then Landlord and Tenant shall attempt to agree in good faith upon a single appraiser reasonably acceptable not later than seventy-five (75) days prior to the applicable Exercise Date. If Landlord and Tenant are unable to agree upon a single appraiser within such time period, then Landlord and Tenant shall each appoint one appraiser not later than sixty-five (65) days prior to the applicable Exercise Date, and Landlord and Tenant shall each give written notice to the other of such appointment at the time of such appointment Within ten (10) days thereafter, the two appointed appraisers shall appoint a third appraiser. If either Landlord or Tenant fails to appoint its appraiser and to give written notice thereof to the other party within the prescribed time period, the single appraiser appointed shall determine the Fair Market Value of the Premises. If both partiesparties fail to appoint appraisers within the prescribed time periods, then the first appraiser thereafter selected by a party (such selection to be by written notice thereof to such appraiser and the other party) shall determine the Fair Market Value of the Premises. Each party shall bear the cost of its own appraiser and the parties shall share equally the cost of the single or third appraiser if applicable. All appraisers shall have at least two (5) years' experience in the appraisal of commercial/industrial real property in the area in which the Premises am located and shall be split equally by members of professional organizations such as MAI or its equivalent.
(ii) For the purposes of such appraisal, the term "Fair Market Value" shall mean the price that a ready and willing tenant would pay and Landlord and Tenantwould accept, which appraiser’s decision as to of the FMV applicable Rental Adjustment Date, as monthly rent, for comparable space within comparable high-rise office buildings in the greater Xxxx Xxxxx Airport area if such space, including all incidental amenities, such as parking, were exposed for lease on the open market for a reasonable period of time. If a single appraiser is chosen, then such appraiser shall determine the Fair Market Value of the Premises. Otherwise, the Fair Market Value of the Premises shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end arithmetic average of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6three (3) appraisals which are closest in amount, and the third appraisal shall be disregarded. All of Tenant’s rights under Landlord and Tenant shall instruct the provisions appraiser(s) to complete their determination of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other Fair Market Value not later than a monetary default) within thirty (30) days after prior to the date applicable Exercise Date. If the Fair Market Value is not determined prior to the applicable Exercise Date, then Tenant may elect not to exercise the applicable Extension option, or Landlord gives notice may agree to Tenant extend the applicable Exercise Date for an additional period of such default or time, not to exceed thirty (c30) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such defaultdays, whether or not Tenant has cured such defaultsso as to inalize the determination of Fair Market Value.
Appears in 1 contract
Samples: Office Lease (MSC Software Corp)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon (i) Tenant giving Landlord an irrevocable written notice (the “Option Notice”) of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term and (ii) Tenant providing Landlord, at or prior to the commencement of the Option Term, with a replacement Letter of Credit (or an amendment to the then-existing Letter of Credit) with an outside expiration date no earlier then 45 days following the expiration of the extended Term. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Base Rent at the commencement of each Option term shall equal ninety-five percent (95%) of the then-current fair market value for comparable office and laboratory space in the Xxxxxxx Square, Cambridge, Massachusetts market of comparable age, quality, level of finish and proximity to amenities and public transit and taking into consideration the Property Management Fee and market increases in rent during each Option term (“FMV”). Tenant may, no more than fifteen (15) months prior to the date the Term is then scheduled to expire, and at least 30 days prior to the giving of its Option Notice, request Landlord’s estimate of the FMV for the applicable Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives an Option Notice, such Option Notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Property. In the event that the parties are unable to agree upon the FMV within thirty (30) days after the giving of Tenant’s Option Notice, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Xxxxxxx Square, Cambridge, Massachusetts laboratory/research and development leasing market (the “Baseball Arbitrator”) shall be selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, then the same shall be designated by the President of the Real Estate Bar Association of Massachusetts (“XXXX”) or, should XXXX xxxxx to exist, the President of the Real Estate Finance Association (“REFA”). The Baseball Arbitrator selected by the parties or designated by XXXX (or REFA, as applicable) shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Xxxxxxx Square, Cambridge, Massachusetts market and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. No Option is assignable separate and apart from this Lease. Tenant’s rights under this Article 42 shall terminate if Tenant assigns this Lease or sublets more than the lesser of one (1) full floor and 40% of the Premises in the aggregate (excepting Exempt Transfers); provided, however, that Tenant shall have the one-time right to retain one (1) previously unexercised Option under this Article, if any (notwithstanding the provisions of this Leasesentence) if, at the time Tenant gives its Transfer Notice with respect to such Transfer, (a) less than five (5) years are then remaining in the Term, (b) there then remains at least one (1) previously unexercised Option, (c) the proposed Transfer in question is an assignment of this Lease to a bona fide third party tenant and such surviving Option shall be for the sole benefit of such proposed Transferee, and (d) Tenant expressly states in such Transfer Notice, in bold and prominent print, that at least one (1) previously unexercised Option is intended by the parties to such Transfer to survive for the benefit of such Transferee.
42.3. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default of any monetary obligation under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At If, at the time that Tenant attempts to exercise such Option, there exists any time after an event of Default as described in Section 24 Article 31 of the this Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) ), and continuing Tenant may not exercise the Option until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Aveo Pharmaceuticals Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by three (3) years as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Rent shall equal ninety-five percent be adjusted on the first (95%1st) day of the fair market value (“FMV”) for comparable office/research extension term and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesdate thereof in accordance with Article 6.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in Neither Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine six (96) months prior to the end of the expiration of the then-current initial Term of this Lease.
. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this paragraph. 42.4. Notwithstanding anything contained in this Section Article 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section Article 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Cytrx Corp)
Options to Extend Term. Tenant shall have two (2) options (each, each an “Extension Option”“) to extend the Term of this Lease upon for a period of five (5) years each (each an “Extension Period“), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (953.0%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date on an annual basis. If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine “Extension Notice“) not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this Lease.
42.4Extension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (c) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or and such defaults were not Tenant cures such Defaults cured within any the applicable cure period.
42.5. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.4.
42.6. All of Tenant’s rights under 3.2, then the provisions of the Extension Option shall terminate terminate, and shall be null and void and of no further force and effect. If this Lease or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior right to the commencement date possession of the new termPremises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, (a) or if Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default shall have assigned or (c) Tenant has defaulted under transferred any interest in this Lease three or sublet any part of the Premises (3) except pursuant to a Permitted Transfer, as defined below), then immediately upon such termination, assignment, transfer or more times sublease, the Extension Option shall simultaneously terminate and a service or late charge under become null and void. Time is of the essence with regard to this Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults3.2.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. 1A.2.1 Tenant shall have two successive options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1for an additional three years. Each such option may be exercised by Tenant shall have two (2) consecutive Options to extend the Term of this Lease only by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election exercise to exercise the applicable Option at least nine (9) Landlord no earlier than 18 months and no later than 12 months prior to the end of the expiration of the then-current Term of this Leaseeffective Term.
42.4. Notwithstanding anything contained in this Section 421A.2.2 Upon such exercise, Tenant the parties shall not have be obligated under all the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions terms and conditions of this Lease and continuing until Tenant has cured through the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 extended Term, except that Monthly Base Rent during the extension of the Lease Term shall be equal to the higher of (provided, however, that, i) the Monthly Base Rent in the final month of the then-effective Term or (ii) 95% of the fair market rent for purposes the Premises as of this Subsection 42.4(b)90 days after Tenant's notice of exercise.
1A.2.3 Within 20 days of Tenant's notice of exercise, Landlord shall not propose a Base Monthly Rent for the extended Term. The parties shall negotiate in good faith, but if they are unable to agree upon such Base Monthly Rent by 30 days after the delivery of Landlord's proposal, then either party may elect to cause such Base Monthly Rent to be required determined by reference to provide Tenant with the appraised fair market rent. Such election shall be made by such party by notice to the other party, including in such notice the designation of an appraiser. The other party may accept such appraiser or designate another appraiser within 10 days of such Default) notice. If it does not designate another appraiser in such period, it shall be deemed to have accepted the first appraiser. If a second appraiser is designated, the two appraisers shall promptly appoint a third appraiser.
1A.2.4 Each appraiser shall determine the fair market rent for the Premises for the extended Term by reference to all factors deemed appropriate in his or her professional opinion, and continuing until Tenant cures any notify the parties within 30 days of the date of appointment of the last appraiser of such Defaultfair market rent. The Base Monthly Rent for the extended Term shall be calculated as provided in Section 1.A.2.1 by reference to the fair market monthly rent determined by the single appraiser or, if such Default there are three appraisers, the mean average of the two closest fair market monthly rents.
1A.2.5 All appraisers under this appraisal provision shall be independent certified professional appraisers with at least five years' experience appraising office properties/business park complexes in the Cities of Redmond and Bellevue. If there are three appraisers, each party shall pay for the cost of its designated appraiser and 50% of the cost of the third appraiser. If there is susceptible to being cured; or
(c) In only one appraiser, each party shall pay 50% of the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each cost of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodappraiser.
42.5. The period of time within which 1A.2.6 Tenant may not exercise an Option shall not be extended or enlarged by reason its option to renew the Term at any time in which it is in Default under this Lease. If Tenant becomes in Default under this Lease after exercise of Tenant’s inability its option to exercise such Option because extend the Term but before the commencement of the provisions of Section 42.4.
42.6. All of Tenant’s rights extended Term, Landlord may, in addition to its other remedies under the provisions of the Option shall this Lease, elect to terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written extension by notice from Landlord in writing to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after whereupon the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for Term shall expire without any such default, whether or not Tenant has cured such defaultsextension.
Appears in 1 contract
Samples: Lease Agreement (Advanced Digital Information Corp)
Options to Extend Term. Provided Tenant shall have options (each, an “Option”) to extend the Term is not in default of any terms and conditions of this Lease upon at the following terms time of notifying Landlord of its intent to exercise an option and conditions:
42.1at all times thereafter until such option term commences, Tenant may exercise the option(s) set forth in Section 1(H). Tenant Each renewal option shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on be at the same terms and conditions as of this Lease, except that GMMR shall be adjusted (i) pursuant to Section 4(A)(IV), or (ii) to the then current fair market rental rate, whichever is higher. Basic Annual Rent shall equal ninety-five percent (95%) of If the parties cannot agree upon the fair market value rental rate within fifteen (“FMV”15) for comparable office/research days after Tenant’s notice to Landlord of its intent to exercise an option, then the fair market rental rate shall be determined by an independent appraiser appointed by Landlord and development projects reasonably acceptable to Tenant, whose decision in the Brisbane/Peninsula market as of the date Tenant exercises the respective Optionthis matter shall be final, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketconclusive and binding. In the event that If Landlord and Tenant disagree as are unable to agree on a single appraiser within ten (10) days after demand by either party, then each party shall select its own appraiser within ten (10) days thereafter and the FMVtwo such appraisers shall mutually select a third appraiser within ten (10) days after the second of such appraisers is chosen. The average of the two appraisals closest in amount shall be final, they conclusive and binding. Each party shall hire an appraiser reasonably acceptable to both parties, bear the cost of which its own appraiser, and the parties shall share equally the cost of a single or a third appraiser, as applicable. Each appraiser shall have at least five (5) years’ experience in the appraisal of commercial real property and shall be split equally by a member of professional organization such as MAI or an equivalent. Written notice to Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election desire to exercise the applicable Option at least nine an option to renew must be received by Landlord no earlier than one hundred eighty (9180) months days and no later than ninety (90) days prior to the end of the expiration of the then-then current Term term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall If Landlord does not have the right receive Tenant’s written unconditional notice of its intent to exercise an Option:
option within such ninety (a90) During the time commencing from the date Landlord delivers day period, all options hereunder shall immediately terminate, and there shall be no further right to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of extend the Lease (providedTerm. Each option to extend shall be personal to the tenant first named herein, however, that, for purposes of this Subsection 42.4(b), Landlord and shall not be required apply to provide Tenant with notice or for the benefit of any assignee or subtenant of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodinitial tenant.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Shop Lease (Body & Mind Inc.)
Options to Extend Term. Tenant shall have options (each, an “Option”is given the option(s) to extend the Term term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term on all of this Lease by three (3) years each on the same terms and conditions as contained herein, except for Base Rent, for the period set forth in paragraph 1.13, above. The option(s) to extend and renew this Lease. Basic Annual Rent shall equal ninety-five percent Lease must be exercised, if at all, by notice in writing (95%the "option notice") given to Landlord at least one hundred twenty (120) days, but not more than two hundred forty (240) days, before the expiration of the fair market value (“FMV”) for comparable office/research and development projects initial term- provided, however, that if Tenant is in the Brisbane/Peninsula market as of default on the date of giving the option notice, the option notice shall, at Landlord's election, be totally ineffective, or if Tenant exercises is in default on the respective Option, increased on each annual anniversary of date the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as is to the FMV, they shall hire an appraiser reasonably acceptable to both partiescommence at Landlord's election, the cost of which extended term shall be split equally by Landlord not commence and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option expire at least nine (9) months prior to the end of the expiration of the then-current Term of this Leaseinitial term.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During The parties shall have sixty (60) days after Landlord receives the time commencing from option notice in which to agree on minimum monthly rent during the date Landlord delivers first (1st) year of the extended term. If the parties agree on the minimum monthly rent for the first (1st) year of the extended term, they shall immediately execute an Amendment to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured stating the specified default minimum monthly rent. If the parties are unable to Landlord’s reasonable satisfaction; or
agree on the minimum monthly rent for the first (b1st) At any time after an event of Default as described in Section 24 year of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of then, within twenty (20) days after written the expiration of that period each party at its cost and by giving notice from Landlord to Tenantthe other party shall appoint a real estate appraiser with at least five (5) years full-time commercial appraisal experience in the area in which the premises are located to appraise and set the minimum monthly rent for the first (1st) year of the "tended term". If a party does not appoint an appraiser within fifteen (15) days after the other party has given notice of the name of its appraiser, the single appraiser appointed shall be the sole appraiser and shall set the minimum monthly rent for the first (b1st) Tenant fails year of the extended term. If the two (2) appraisers are appointed by the parties as stated in this paragraph they shall meet promptly and attempt to commence set the minimum monthly rent for the first (1st) year of the extended term. If the second appraiser has been appointed, they shall attempt to cure elect a default third appraiser meeting the qualifications stated in this paragraph within ten (10) days after the last day the two appraisers are given to set the minimum monthly rent. If they are unable to agree on the third appraiser either of the parties to this Lease by giving ten (10) days notice to the other than party can apply to the then Presiding Judge of the Superior Court for the county in which the Premises are located for the selection of a monetary defaultthird appraiser who meets the qualifications stated in this paragraph. Each of the parties shall bear one-half (1/2) within of the cost of appointing the third appraiser and of paying the third appraisees fee. The third appraiser however selected, shall be a person who has not previously acted in any capacity for either party. Within thirty (30) days after the date Landlord gives notice selection of the third appraiser, a majority of the appraisers shall set the minimum monthly rent for the first (1st) year of the extended term. If a majority of the appraisers are unable to Tenant set the minimum monthly rent within the stipulated period of such default time, the three (3) appraisals shall be added together and their total divided by three (3) the resulting quotient shall be the minimum monthly rent for the premises during the first (1st) year of the extended term. In setting the minimum monthly rent, the appraiser or appraisers shall not consider the use to which the premises are restricted under this Lease and shall consider the highest and best use for the premises, without regard to the restrictions on use of the premises contained in this Lease. If, however, the low appraisal and/or the high appraisal are/is more than twenty percent (20%) lower and/or higher than the middle appraisal, the low appraisal and/or the high appraisal shall be disregarded. If only one (1) appraisal is disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2): the resulting quotient shall be the minimum monthly rent for the premises during the extended term. If both the low appraisal and the high appraisal are disregarded, as stated in this paragraph, the middle appraisal shall be the minimum monthly rent for the premises during the first (1st) year of the extended term. After the minimum monthly rent for the extended term has been set, the appraisers shall immediately notify the parties.
(b) The Base Rent shall be adjusted at the commencement of the second (2nd) year of the Extended Term, and each Lease year then after during the extended term (hereinafter referred to as the "adjustment date"), in the manner set forth in Paragraph 1.13 of this Lease.
(c) Tenant has defaulted under shall have no other right to extend the term beyond the extended term(s) provided herein.
(d) Tenant's fights to extend this Lease three (3) are personal to Tenant and any assignee, sublessee or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultssuccessor shall have no right to exercise this option unless specifically agreed to in writing by Landlord.
Appears in 1 contract
Samples: Lease Agreement (McMS Inc /De/)
Options to Extend Term. Tenant shall have three (3) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease by three after the third Extension Period, (3b) years each on the same terms and conditions as this Lease. Basic Annual Base Rent payable during the Extension Period shall be an amount equal ninety-five percent (95%) of to the fair market value for similar space in the Capitol Heights, Maryland market, subject to a fair market value rent escalation during the Extension Period consistent with similar space in such market (“collectively, the "FMV”) ").
3.2.1. Upon Landlord’s receipt of an Extension Notice (as defined below), Landlord and Tenant will use good faith efforts to negotiate the FMV, taking into account all relevant factors including, without limitation, all uses which the Premises are adapted and might in reason be applied, rent for comparable office/research and development projects premises in the Brisbane/Peninsula market as relevant competitive market, concessions offered to new tenants, Tenant’s creditworthiness and the quality and location of the date Building and Premises. If Landlord and Tenant exercises cannot agree on the respective OptionFMV within thirty (30) days after Landlord’s receipt of an Extension Notice (as defined below), increased on each annual anniversary then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the commencement of each extended term Capitol Heights, Maryland leasing market (the "Baseball Arbitrator") shall be selected and paid for jointly by such percentage, if any, that constitutes a market rate annual increase for such marketLandlord and Tenant. In the event that Landlord and Tenant disagree as cannot agree upon the Baseball Arbitrator, then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the "JAMS"). The Baseball Arbitrator selected by the parties or designated by JAMS shall (a) have at least ten (10) years’ experience in the leasing of relevant space in the applicable market and (b) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV, they . The Baseball Arbitrator shall hire an appraiser reasonably acceptable grant to both parties, Landlord and Tenant a hearing and the cost right to submit evidence. The Baseball Arbitrator shall determine which of which shall be split equally the two (2) FMV determinations more closely represents the actual FMV. The Baseball Arbitrator may not select any other FMV for the Premises other than one submitted by Landlord and or Tenant, which appraiser’s decision as to . The FMV selected by the FMV Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Extension Period. After the final determination of Base Rent payable for the Extension Period, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Extension Period. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.23.2.2. Notwithstanding anything in this Lease If Tenant exercises an Extension Option, such Extension Option shall apply to the contrary, entire Premises (and no less than the entire Premises). Tenant shall not assign or transfer may exercise an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant Extension Option only by giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than twelve (912) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.3. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (a) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default Default (i.e. beyond any applicable notice and cure period) under this Lease, in the case of any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults arose during the twelve (12)-month 12) month period immediately prior to the date that Tenant intends to exercise an Extension Option; or (b) in the event that Tenant has been in Default with respect to any of its monetary obligations under this Lease two (2) or more times during the twelve (12) month period immediately prior to the date that Tenant intends to exercise an Extension Option, whether or not Tenant cures has cured such Defaults within any applicable cure period.
42.5Defaults. The period of time within which If Tenant may shall fail to timely exercise an the Extension Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of in accordance with the provisions of this Section 42.43.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect.
42.61 The Closing Date under the Purchase Agreement. 2 The last day of the 192nd full calendar month following the Closing Date.
3.2.4. All of Tenant’s rights under with respect to the provisions of the Extension Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an the Extension Option if, after such exercise, but prior to the commencement date of the new termExtension Period, (ai) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, or (bii) Tenant fails to commence to cure a material non-monetary default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default material non-monetary default. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises other than in the case of a Permitted Transfer, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.5. The Extension Options are conditioned upon (a) each Full Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's successful exercise of an Extension Option; and (b) delivery of one of the following: (i) in the event the Limited Guaranty has not been substituted pursuant to Section 6.4 below, the Limited Guarantor executing and delivering an amendment to its Limited Guaranty that explicitly extends the Limited Guarantor’s obligations so that the Limited Guarantor guarantees, subject to the limitations set forth in such Limited Guaranty, Tenant’s lease obligations incurred pursuant to Tenant’s successful exercise of an Extension Option, or (cii) Tenant has defaulted under this Lease three (3in the event there is a Substitute Guarantor(s), such Substitute Guarantor(s) or more times executing and a service or late charge under Section 24.1 has become payable for delivering an amendment to the applicable Guaranty, subject to any limitations set forth in such defaultGuaranty, whether or not Tenant has cured such defaultsguaranteeing Tenant’s lease obligations incurred pursuant to Tenant’s successful exercise of an Extension Option.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant Sublessee shall have options the right, to be exercised as hereinafter provided, to convert the Sublease to a direct lease with Master Lessor (eachthe "Converted Sublease"), an “Option”) such conversion to be effective from and after the expiration of the original term of the Sublease, and simultaneously with such conversion to extend the Term term of this Lease the Converted Sublease for the following additional periods: (a) the first option, if exercised, shall extend the term of the Converted Sublease for the period from April 1, 2006 through December 31, 2010, and (b) the second option, if exercised, shall extend the term of the Converted Sublease for the period from January 1, 2011 through December 31, 2015. Said extensions shall be upon all of the terms and conditions of the Sublease, except as modified by the following terms and conditions:
42.1. Tenant (a) That Sublessee is not then in default under any of the terms, covenants, conditions, provisions or agreements of the Sublease or the Lease;
(b) Sublessee shall have two (2) consecutive Options exercise its right to extend term by notifying Master Lessor not less than one (1) year prior to the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) termination of the fair market value original term (“FMV”or previously extended term) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice hereof of its election to exercise the applicable Option at least nine such right, otherwise said option (9) months prior to the end including any options for further extensions of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant term) shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease be null and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactionvoid; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; orand
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior The new rental shall be subject to the date that Tenant intends to exercise mutual agreement of both Master Lessor and Sublessee but in no event shall the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5rental be less than the then fair market value of the Subleased Premises. The period of time parties shall have thirty (30) days after Master Lessor receives Sublessee's notice in which to agree on the new rental for the extended term. If Master Lessor and Sublessee are unable to agree on the new rental for the extended term within which Tenant may exercise said 30-day period, then, within ten (10) days thereafter, Master Lessor and Sublessee will each choose an Option shall not be extended or enlarged by reason of Tenant’s inability appraiser to exercise such Option because determine the fair market rental value of the provisions of Section 42.4.
42.6. All of Tenant’s rights under Subleased Premises by giving notice to the provisions other party of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date identity of the appraiser it selected. If a party does not appoint an appraiser within such ten day period, the single appraiser appointed shall be the sole appraiser and shall set the new base rental for the extended term. If the two appraisers are appointed by the parties as stated in this paragraph, (a) Tenant fails they shall meet promptly and attempt to pay set the new rental for the extended term. If they are unable to Landlord a monetary obligation of Tenant for a period of agree within twenty (20) days after written notice from Landlord to Tenantthe second appraiser has been appointed, they shall select a third impartial appraiser meeting the qualifications stated in this paragraph within five (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (305) days after the date Landlord gives notice aforesaid twenty (20) day period; if the two appraisers are unable to Tenant agree upon the third appraiser, either party may apply to the Presiding Judge of such default or the San Francisco Superior Court for appointment of the third appraiser meeting the qualifications described below. Each of the parties shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser's fee. The third appraiser shall be a person who has not previously acted in any capacity for either party. All of the appraisers shall be California licensed real estate brokers with at least ten (c10) Tenant years experience leasing office space in San Francisco. Within fifteen (15) days after the selection of the third appraiser, a majority of the appraisers shall set the new rental for the extended term. If a majority of the appraisers are unable to set the rental within the stipulated period of time, the three appraisals shall be added together and their total divided by three; the resulting quotient shall be the rental for the Subleased Premises during the extended term. After the new rental for the extended term has defaulted under this Lease three (3) or more times been set, the appraisers shall immediately notify the parties and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsMaster Lessor and Sublessee shall promptly enter into an amendment of the Sublease setting forth said new rental.
Appears in 1 contract
Samples: Sublease (Quokka Sports Inc)
Options to Extend Term. (a) Provided that (i) there is no uncured Event of Default hereunder by Tenant at the time of Tenant’s Extension Notice (as defined below), (ii) there is no circumstance which with the giving of notice or passage of time shall have options constitute an Event of Default, and (each, an “Option”iii) to extend the Term Tenant has not been in default of any of its obligations under this Lease upon (other than the following terms and conditions:
42.1. payment of Rent) on two (2) or more occasions during the Lease Term (collectively, the “Extended Term Exercise Conditions”), Tenant shall have two (2) consecutive Options options (each an “Extension Option”) to extend the Lease Term for an additional term of five (5) years (each an “Extended Term”), commencing upon the Expiration Date of the Original Term or the first Extended Term, as the case may be, and terminating sixty (60) months thereafter, provided that Tenant proceeds strictly in accordance with the provisions of this Lease by three Section 2.3.
(3b) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective To effectively exercise an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentageTenant shall, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine more than eighteen (918) months nor less than twelve (12) months prior to the end Expiration Date of the expiration of Original Term or the then-current first Extended Term, whichever is then current, provide written notice to Landlord (“Tenant’s Extension Notice”) that Tenant wishes to extend the Lease Term of this Lease.
42.4for the first or second Extended Term, as applicable. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During If at the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of receives Tenant’s inability to exercise such Option because of Extension Notice the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option ifExtended Term Conditions are satisfied, after such exercisethen Landlord shall, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives of Landlord’s receipt of Tenant’s Extension Notice, provide written notice to Tenant (“Landlord’s Extension Notice Response”) of such default the Base Rent that will be due for the Extended Term (the “Extended Term Base Rent”). The Extended Term Base Rent specified by Landlord shall be that which Landlord reasonably projects will be the fair market rent as of the commencement of the Extended Term based upon what would be offered in the market for lease renewals of comparable space in a comparable building in the suburban Boston market, and in no event shall the Extended Term Base Rent be less than the rental rate in effect during the final year of the Original Term or the first Extended Term, whichever is then current. Tenant shall, within thirty (c30) Tenant has defaulted under this Lease three days of Tenant’s receipt of Landlord’s Extension Notice Response, provide written notice to Landlord (3“Tenant’s Extended Term Base Rent Response”) or more times and a service or late charge under Section 24.1 has become payable for any such default, indicating whether or not Tenant has cured agrees to pay such defaultsExtended Term Base Rent.
(i) If Tenant, in Tenant’s Extended Term Base Rent Response, agrees to pay the Extended Term Base Rent quoted in Landlord’s Extension Notice Response, and if upon the commencement date of the Extended Term, the Extended Term Conditions are satisfied, then this Lease shall be extended for the Extended Term without the requirement of any additional documentation, and each and every term and condition of this Lease shall apply during the Extended Term, except that the Base Rent shall be the Extended Term Base Rent.
(ii) If Tenant, in Tenant’s Extended Term Base Rent Response, does not agree to pay the Extended Term Base Rent quoted in Landlord’s Extension Notice Response and elects to proceed to arbitration with respect to the Extended Term Base Rent, then Landlord and Tenant shall proceed as follows: Each of Landlord and Tenant shall at its own cost and expense retain a real estate broker, who must have ten (10) years’ experience in commercial leasing in the suburban Boston market, to determine the fair market rent for the Premises as of the commencement date of the Extended Term, which appraisals must be completed and submitted within thirty (30) days of the commencement of the appraisal process by Tenant’s notice. If the two appraisals are within five percent (5%) of each other, the average of the two amounts shall constitute the Extended Term Base Rent. If the two appraisals are not within five percent (5%) of each other, the two brokers shall select a third real estate broker (who must also possess the minimum qualifications described above), who within the next thirty (30) days shall select which of the two initial amounts shall constitute the Extended Term Base Rent. Landlord and Tenant shall each bear one-half of the cost of said third broker. The appraisal process shall be binding upon both Landlord and Tenant, and once the process is initiated, Tenant may not withdraw Tenant’s Extension Notice.
Appears in 1 contract
Options to Extend Term. Provided that Tenant is not in default hereunder either at the date Tenant's notice of exercise is given or on the date an Additional Term (as defined below) would otherwise commence, Tenant shall have options the option to extend the Term with respect to the entire Premises then leased to Tenant by two (2) additional periods of five (5) years each (each, an “Option”"Additional Term"). Tenant's option for the first Additional Term (the "First Additional Term") to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentagebe exercised, if anyat all, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option Landlord given at least six (6) and no more than nine (9) months prior to the end Expiration Date determined pursuant to Section I. of this Lease. Tenant's option for the second Additional Term, if any (the "Second Additional Term"), shall be exercisable by Tenant only if Tenant has previously exercised the option for the First Additional Term and shall be exercised, if at all, by written notice to Landlord given at least six (6) and no more than nine (9) months prior to the expiration date of the expiration First Additional Term. If Tenant is entitled to and gives notice in the manner and within the time set forth in this subsection B., then the Term shall be extended by the applicable Additional Term, on all of the conditions set forth in this Lease for the Premises for original Term, except that parking rates shall be at then-current fair market value:
(1) Monthly Rental for each Additional Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Optionbe determined as follows:
(a) During Monthly Rental for each Additional Term shall be 95% of fair market rental rate or rates for comparable buildings (considering size, age, quality, utility, location, access, improvements and amenities) located within the time commencing from general geographic location of the date Project, as reasonably determined by Landlord. Landlord delivers shall, upon receipt of Tenant's notice provided for above and at least three (3) months prior to the then-current Expiration Date, notify Tenant a written notice that Tenant is in default under any provisions writing of this Lease its determination of the fair market rental rate or rates for parking and continuing until Tenant has cured for the specified default to Landlord’s reasonable satisfaction; orpurpose of determining Monthly Rental for the ensuing Additional Term.
(b) At any time Within ten (10) days after an event of Default such notice is given, Tenant may elect in written notice to Landlord either to (i) unequivocally accept such Monthly Rental for the ensuing Additional Term as described in Section 24 determined by Landlord or (ii) submit the matter of the Lease fair market value for the purpose of determining Monthly rental (providedonly) to appraisal in accordance with (c) below. Tenant's failure to make a written election strictly in accordance with the preceding sentence shall be deemed to be an acceptance of the Monthly Rental as determined by Landlord, however, that, EXCEPT that an equivocal acceptance of the Monthly Rental shall be deemed an election by Tenant to submit the matter of the fair market value for purposes the purpose of this Subsection 42.4(b), Landlord shall not be required determining Monthly rental (only) to provide Tenant appraisal in accordance with notice of such Default(c) and continuing until Tenant cures any such Default, if such Default is susceptible to being curedbelow; orand
(c) In If Tenant elects or is deemed to have elected to submit the event that Tenant has committed a Default two matter to appraisal in accordance with (2b) or more times and a service or late charge has become payable under Section 24.1 for above, then each of such Defaults during the twelve (12)-month period immediately prior party shall, by written notice to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults other party given within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, ten (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2010) days after written notice from Landlord to such election or deemed election by Tenant, (b) Tenant fails select an appraiser. If either party shall fail to commence select an appraiser in such manner and within such time, the single appraiser actually selected shall perform the appraisal. If each party timely and properly selects an appraiser, the two appraisers selected by the parties shall determine and attempt to cure a default (other than a monetary default) agree on the fair market rental value for the ensuing Additional Term within thirty (30) days after their appointment; if they are unable to so agree and their appraised values differ by more than five percent (5%) in the date Landlord gives aggregate over the ensuing Additional Term, the two appraisers shall, by written notice to Tenant Landlord and Tenant, select a third appraiser within five (5) days after expiration of the thirty (30) day period within which they were to determine and agree on the fair market rental, which third appraiser shall analyze the fair market rental for the ensuing Additional Term. If they cannot agree on a third appraiser within such default time period, or if both parties fail to select an appraiser in the manner and within the time herein provided, either party may have the third (cor sole, if applicable) Tenant has defaulted under this Lease appraiser appointed by application to the presiding judge of the Los Angeles County Superior Court or his or her designee. If the appraised values of the first two appraisers are within five percent (5%) in the aggregate over the ensuing Additional Term, then Landlord shall calculate the average of the two appraised values as a flat rental rate for the ensuing Additional Term, which average shall be the fair market rental rate for such Additional Term. The appraisers shall have the MAI designation and a minimum of ten (10) years experience in the Los Angeles County (Glendale/Pasadena) office market. Each of the first two appraisers shall analyze the fair market rental value of the Premises and shall give written notice to the parties of his or her appraisal within thirty (30) days following his or her appointment or selection, but in no event later than the commencement of the Additional Term. If a single appraiser is used, his or her determination shall be the fair market rental rate. If three appraisers are used, the third appraiser shall select one of the values determined by the first two appraisers as the fair market rental rate. The cost of the appraisals shall be shared equally by Landlord and Tenant;
(2) The provisions of Sections III.B. and C. and EXHIBIT C shall not apply to the Additional Term; and
(3) In the case of the First Additional Term, there shall be one further option to extend the Term, and, in the case of the Second Additional Term, there shall be no further options to extend the Term. In the event Tenant fails or more times is not entitled to exercise its option for the First Additional Term, or Tenant is deemed (pursuant to (1)(b) above) to have elected to terminate the Lease upon receipt of Landlord's notice of the fair market rental for the First Additional Term, then Tenant's option for the Second Additional Term shall lapse and a service or late charge under Section 24.1 has become payable for any such default, whether or shall thereafter not Tenant has cured such defaultsbe exercisable by Tenant.
Appears in 1 contract
Samples: Office Lease (Earthlink Network Inc)
Options to Extend Term. Tenant shall have two options (each, an “Option”) to extend the Term Term, in each case by an additional [***] year period (i.e., for a total, if both such options are exercised as provided herein, of this Lease [***] successive years beyond the original [***] year Term) as to the entire Premises and no less than the entire Premises (each [***] year period being referred to herein as an “Extension Term”) upon the following terms and conditions:
42.1. All provisions of this Lease shall be applicable during each such Extension Term except that: (i) Tenant shall have two (2) consecutive Options no option to extend the Term of this Lease by three beyond the second Extension Term; (3ii) years the Base Rent for each on Extension Term shall be determined in accordance with this Section 42); and (iii) as otherwise provided in this Section 42.
42.1 On the same terms and conditions as this Lease. Basic Annual first (1st) day of each Extension Term, Base Rent shall be equal ninety-five percent (95to [***]%) of the fair market value Fair Market Rent (“FMV”as defined below) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises Premises, as determined in accordance with Sections 42.7 through 42.10, inclusive, below, provided in no event shall the respective OptionBase Rent be less than the Base Rent in effect immediately prior to such date, increased and shall thereafter be adjusted on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesdate thereof in accordance with Article 8.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in 42.2 No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are 42.3 Bach Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) [***] months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.4. 42.4 Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers Option or to Tenant a written notice that commence an Extension Term unless Tenant is not then in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. 42.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All 42.6 Landlord may reject either or both of Tenant’s rights under Options hereunder if; within the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, twenty four (a24) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after months immediately preceding the date Landlord gives that a notice to Tenant of such default or (c) Option is due, Tenant has defaulted Defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such defaulttimes, whether or not Tenant has cured such defaultsDefaults.
42.7 Subject to the provisions of Section 42.9 and 42.10 below, in order to determine the Fair Market Rent for purposes of calculating the Base Rent for an Extension Term, Tenant and Landlord shall each deliver to the other their respective determinations of the Fair Market Rent (hereinafter respectively referred to as the “Landlord’s Determination” and “Tenant’s Determination”) no later than the date that is [***] days prior to the scheduled commencement date of the applicable Extension Term. If Tenant’s Determination is lower than Landlord’s Determination, then Landlord and Tenant shall attempt in good faith to agree upon the Fair Market Rent for a period of [***] days after the date on which both the Landlord’s Determination and the Tenant’s Determination have been duly delivered (the “Determination Delivery Date”). If Tenant’s Determination is higher than Landlord’s Determination, then the Fair Market Rent for the Premises shall be the Landlord’s Determination. If Landlord and Tenant do not agree on the Fair Market Rent for the Premises within [***] days after the Determination Delivery Date, then Tenant shall have the tight to rescind the exercise of the Option by written notice to Landlord on or before the date that is [***] Business Days following the expiration of such [***] day period. In the event Tenant does not deliver a rescission notice to Landlord, Landlord and Tenant shall jointly select an independent real estate appraiser that (a) neither Landlord nor Tenant, nor any of their respective affiliates, has engaged during the immediately preceding period of [***] years; and (b) has at least ten (10) years of experience in leasing first-class office properties located in the Rockville, Maryland area (such appraiser being referred to herein as the “Appraiser”). Landlord and Tenant shall each pay [***] percent ([***]%) of the Appraiser’s fee. If Landlord and Tenant do not agree on the Appraiser within [***] days after the last day of such period of [***] days, then the parties shall request that. the American Arbitration Association select the Appraiser.
42.8 The parties shall instruct the Appraiser to (a) conduct the hearings and investigations that he or she deems appropriate, and (b) choose either Landlord’s Determination or Tenant’s Determination as the better estimate of Fair Market Rent for the Premises, within [***] days after the date that the Appraiser is designated. The Appraiser’s aforesaid choice shall be conclusive and binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with the procedure described in this Section 42.8. The Appraiser shall not have the power to supplement or modify any of the provisions of this Lease:
42.9 For purposes of calculating the Fair Market Rent, the following presumptions shall apply: the Premises is free and clear of all leases and tenancies (including this Lease), the Premises is available for the purposes permitted by this Lease in the then rental market, that Landlord has had a reasonable time to locate a tenant, and that neither Landlord nor the prospective tenant is under any compulsion to rent, and taking into account all relevant factors.
42.10 For purposes of this Lease, “Fair Market Rent’’ for the Premises shall be based on a [***] year extension term and shall be equal to the monthly base rental rate (on a per square foot of rentable area basis) agreed to by willing sophisticated tenants and willing sophisticated landlords in leasing transactions (the “Comparable Transactions”), as of a particular time, in arms-length transactions for non-sublease, non-encumbered, non equity, non-expansion, non-renewal space comparable in size, location, height and quality to the Premises, with a commencement date not more than [***] months prior to the commencement date of the extension term, or if there are no Comparable Transactions, in other first-class combined office/laboratory facilities containing located in the Rockville, Maryland area, with appropriate adjustments to account for differences in the Adjustment Factors (as defined below) and all other factors reasonably relevant to a fair market rent determination. In any determination of Fair Market Rent, appropriate consideration should be given to any reasonably relevant factor (or difference in the subject transaction or Comparable Transactions used for purposes of comparison), including without limitation, the following factors (the “Adjustment Factors”): (a) monthly base rental rates per rentable square foot; (b) abatement provisions reflecting free rent or early occupancy during the lease term; (c) the size, location and floor height of the premises being leased; (d) the condition and market value of the existing tenant improvements, if any (from a general marketing perspective and without regard to their value, usability or function to Tenant or to any tenant in any Comparable Transaction), and the existence and amount of any tenant improvement or comparable allowance; (e) the existence and amount of any other cash payment or other equivalent concession, including, without limitation, moving allowances, lease takeover allowances (or where a lease assumption is applicable, the value thereof), and any comparable tenant inducement; (f) the existence of favorable expansion and/or extension options, and the value thereof; (g) any special parking rights, rates or concessions; (h) whether the lease transaction in question grants to the tenant any protection from increases in real property taxes and/or operating expenses, and if so, the amount,. value or cost associated therewith; and (i) the credit standing of the tenant in question and/or the amount of letters of credit, cash security deposits, and/or other credit enhancements required to be made available by the tenant in question.
Appears in 1 contract
Samples: Lease (Macrogenics Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
41.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninety-five percent (95%) of the then-current fair market value for comparable office and laboratory space in the East Cambridge, Massachusetts submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than eighteen (18) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of each extended term the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. Failure by Landlord to give such percentagenotice within such fifteen (15) day period shall extend, if anyday for day, the thirty (30) day time period for agreement upon FMV that constitutes a market rate annual increase for is set forth below in this Section 41.1. If Tenant gives written notice to exercise an Option, such marketnotice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Property. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the East Cambridge, Massachusetts laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the East Cambridge, Massachusetts submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV, which appraiserin Landlord’s decision as case shall be the estimated FMV previously submitted to Tenant. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both parties.
42.2upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. Notwithstanding anything in this Lease to If, as of the contrarycommencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of Tenant’s interest in the FMV determined pursuant to this Section.
41.2. No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.341.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine fifteen (915) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.441.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfactiondefault; or
(b) At any time after an event of a Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of any monetary obligations under this Lease beyond any applicable notice and cure periods two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether a service or late charge has become payable for both such defaults, and Tenant has not Tenant cures cured such Defaults within any applicable cure perioddefaults.
42.541.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.441.4.
42.641.6. All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after a second written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted in the performance of any monetary obligations under this Lease three beyond any applicable notice and cure periods two (32) or more times and times, a service or late charge under Section 24.1 has become payable for any both such defaultdefaults, whether or not and Tenant has not cured such defaults. Landlord shall have the right in its sole discretion to waive the requirements of this Section.
Appears in 1 contract
Options to Extend Term. Tenant shall have two (2) options (each, each an “Extension Option”) to extend the Term of this Lease upon for a period of five (5) years each (each an “Extension Period”), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease after the second Extension Period, (b) the Base Rent payable during the Extension Period shall be an amount equal to Base Rent in effect immediately prior to the Extension Period, increased by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninetyone-five half percent (953.5%) of on an annual basis.
3.2.1. If Tenant exercises an Extension Option, such Extension Option shall apply to the fair market value entire Premises (and no less than the entire Premises). Tenant may exercise an Extension Option only by giving Landlord irrevocable and unconditional written notice thereof (the “FMVExtension Notice”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine later than twenty-four (924) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.2. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3. If Tenant shall fail to timely exercise the Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant’s right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below, then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4. The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor’s Guaranty that explicitly extends such Guarantor’s obligations so that each Guarantor guarantees Tenant’s Lease obligations incurred pursuant to Tenant’s timely and proper exercise of an Extension Option.
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Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years (each, an “Option Term”) as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent during an Option Term shall equal ninety-five percent (95%) of the fair market value (“FMV”) rent for comparable office/research and development projects similar premises in similar buildings in the Brisbane/Peninsula market West-Cambridge submarket as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentageOption Term, if any, that constitutes a including fair market rate annual increase for such marketrent increases (“FMR”). In the event that If Landlord and Tenant disagree cannot agree on the FMR for an Option Term within thirty (30) days after the date on which Tenant notifies Landlord that it is exercising an Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and Tenant shall each furnish to the other a notice in writing (an “FMR Notice”) stating such party’s estimate of the FMR. Such notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Cambridge area (an “Appraiser”) stating such Appraiser’s opinion of FMR. If only one (1) party’s Appraiser timely submits its opinion of FMR, such FMR shall be binding on Landlord and Tenant. If, within twenty (20) days after expiration of the Submission Period, Landlord and Tenant still cannot agree on the FMR, the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Massachusetts panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMVFMR, they which opinion shall hire an appraiser reasonably acceptable be strictly limited to both partieschoosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, the and each shall pay for its own appraisal. The cost of which the Referee shall be split shared equally by Landlord and Tenant. In determining FMR, which appraiserLandlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors, including, without limitation, (a) the size of the Premises and length of the Option Term, (b) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, and moving allowances, (c) Tenant’s decision as to creditworthiness and (d) the FMV shall be binding on both partiesquality and location of the Building and the Project.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
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Options to Extend Term. (a) Provided that the following conditions are satisfied, the Lease Term shall extend from and after June 1, 2018 to and through May 31, 2023 (such extension of the Term is the “First Extension Term”), unless this Lease provides that the Term should end earlier:
(i) No event of default (as defined in Section 23(a) of the Original Lease) beyond any applicable cure period shall have occurred and be continuing;
(ii) Tenant is Leslie’s Poolmart, Inc., a Delaware corporation, or other approved assignee;
(iii) Tenant is actually occupying the Premises; and
(iv) Tenant notifies Landlord by September 1, 2017 that Tenant is exercising its option to extend the Lease Term for the First Extension Term.
(b) Provided that the following conditions are satisfied, the Lease Term shall extend from and after June 1, 2023 to and through May 31, 2028 (such extension of the Term is the “Second Extension Term”), unless this Lease provides that the Term should end earlier:
(i) No event of default (as defined in Section 23(a) of the Original Lease) beyond any applicable cure period shall have occurred and be continuing;
(ii) Tenant is Leslie’s Poolmart, Inc., a Delaware corporation, or other approved assignee;
(iii) Tenant is actually occupying the Premises;
(iv) Tenant shall have options exercised its option to extend the Lease Term for the First Extension Term; and
(eachv) Tenant notifies Landlord by September 1, an 2022 that Tenant is exercising its option to extend the Lease Term for the First Extension Term.
(b) (i) If Tenant exercises its option to extend the Lease Term for the First Extension Term from and after June 1, 2018, Tenant shall pay Landlord annual base rent in advance on the first day of each calendar month during the First Extension Term, in the amount of Fair Market Rental determined hereunder. If Tenant exercises its option to extend the Lease Term for the Second Extension Term from and after June 1, 2023, Tenant shall pay Landlord Base Rent in advance on the first day of each calendar month during the Second Extension Term, in the amount of Fair Market Rental determined hereunder. Leslie’s Poolmart, Inc., a Delaware corporation, shall remain absolutely liable for the performance of the Tenant’s obligations during either the First Extension Term or the Second Extension Term unless it shall have obtained a release from landlord of such liability.
(ii) The “Option”Fair Market Rental” during the First Extension Term or the Second Extension Term, as the case may, shall mean a rental rate per rentable square foot in the Premises per year equal to the prevailing rental rate then being obtained by landlords (including Landlord) and the allowances and concessions then being granted by landlords (including Landlord) for comparable space in comparable buildings (including the Building) within five miles of the Premises at the time that Tenant exercises is option to extend the Term of this Lease upon for the First Extension Term or the Second Extension Term, as the case may be. The Fair Market Rental shall be determined taking into account the following terms factors: (i) the location, quality, age, parking delivery area, layout, and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions “as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) is” condition of the fair market value Building; (“FMV”ii) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentagefree rent, if any, that constitutes Landlord would have granted to secure a market new tenant of the Premises at such prevailing rental rate; (iii) the take-over and assumption costs Landlord would have incurred to secure a new tenant for the Premises; (iv) the standard brokerage commission Landlord would have incurred to secure a new tenant for the Premises at such prevailing rental rate; (v) the tenant improvement allowance Landlord would have incurred to secure a new tenant for the Premises at such prevailing rental rate; and (vi) the amount of Operating Expenses and Taxes per rentable square foot per year that Landlord would be required to absorb at such prevailing rental rate annual increase for to secure a new tenant of the Premises at such market. In the event that prevailing rental rate.
(iii) Landlord and Tenant disagree as shall, for a period of thirty (30) days from and after the date of Tenant’s notice to extend the Term (the “Negotiation Period”), meet with each other and negotiate in good faith the Fair Market Rental applicable to the FMVPremises, they using the criteria set forth in Section 5 (b) (ii) hereof. If the parties are unable to agree upon the Fair Market Rental during the Negotiation Period, then Landlord shall, within fifteen (15) days after the expiration of such Negotiation Period, deliver to Tenant a written determination of the Fair Market Rental as determined by Landlord (“Landlord’s Determination”). Tenant shall hire have fifteen (15) days from the date of delivery of Landlord’s Determination to notify Landlord in writing of Tenant’s acceptance of Landlord’s Determination or to deliver to Landlord Tenant’s written determination of the Fair Market Rental (“Tenant’s Determination”). If Tenant does not deliver Tenant’s Determination to Landlord within such fifteen (15)-day period, Tenant shall be deemed to have accepted Landlord’s Determination, and Landlord’s Determination shall be the Fair Market Rental. If Tenant does deliver Tenant’s Determination within such fifteen (15)-day period, then the determination of Fair Market Rental will be settled at arbitration in accordance with the provisions of this Section 5 (b). Landlord’s failure to provide the Landlord’s Determination shall not be deemed to be a default by Landlord under this Lease.
(iv) If the Fair Market Rental is to be determined by arbitration, within 45 days after Tenant gives Tenant’s Determination to Landlord, Tenant and Landlord will each appoint an appraiser reasonably who is a member of the American Institute of Real Estate Appraisers and who has had a minimum of ten years of experience in office leasing in the metropolitan Cincinnati, Ohio marketplace, and shall deliver written notice of the name of such appraiser to the other party. If only one of Tenant or Landlord so delivers such written notice of the name of such an appraiser, then such appraiser will be deemed to be a mutually acceptable appraiser who will act as the third appraiser described below. If neither Tenant nor Landlord so delivers such written notice of the name of an appraiser to both the other party, then the first name of such an appraiser delivered by one party to the other will be deemed to a mutually acceptable appraiser who will act as the third appraiser described below.
(v) If two appraisers are so named by the parties, then the cost parties shall direct the two appraisers to meet within 15 days after the date on which the notice of which shall the second of such appraisers is so given, to select a third appraiser, who also meets the qualification requirements of the first two appraisers, and who has not acted previously in any capacity for either Landlord or Tenant, and to deliver written notice of the name of such third appraiser to the parties within such 15 day period. If such two appraisers have not so delivered written notice of such third appraiser within such 15 day period, then either party may petition the appropriate court of general jurisdiction sitting in the City of Cincinnati, Ohio to appoint such third appraiser.
(vi) Within ten days after such third appraiser is so named or appointed (including a sole appraiser deemed to be split equally the third appraiser as provided above), Landlord and Tenant will each deliver to the third appraiser Landlord’s and Tenant’s respective estimates of the Fair Market Rental. Such estimates will be delivered to such third appraiser in sealed packages. Such package may contain such supporting data as the party delivering such estimate desires. Landlord will not be bound by Landlord’s Determination when submitting Landlord’s estimate to the third appraiser. Tenant will not be bound by Tenant’s Determination when submitting Tenant’s estimate to the third appraiser.
(vii) If only one of Landlord or Tenant so delivers such estimate to the third appraiser within such time, then the estimate so delivered will be deemed to be the Fair Market Rental, If neither Landlord nor Tenant delivers such estimate to the third appraiser within such time, then the estimate first delivered to the third appraiser thereafter will be deemed to be the Fair Market Rental. Within ten days after the delivery of such estimates by Landlord and Tenant, which appraiser’s decision the third appraiser will make a determination as to which of the FMV shall be binding on both partiesLandlord’s or Tenant’s estimate of Fair Market Rental is the closest to the Fair Market Rental.
42.2. Notwithstanding anything in this Lease (viii) The third appraiser must determine either (I) that Landlord’s estimate of the Fair Market Rental is the closest to the contraryFair Market Rental, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of (II) that Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3estimate of the Fair Market Rental is the closest to the Fair Market Rental. The Options are conditional Fair Market Rental identified as the closest by the third appraiser will be the agreed upon Fair Market Rental. The third appraiser may not substitute any other estimate of Fair Market Rental, may not average the estimates of Fair Market Rental estimated by Landlord and Tenant, and may not alter in any manner the estimate of Fair Market Rental made by either Landlord or Tenant giving Landlord written notice of its election to exercise (the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of parties intend that arbitration under this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
section 5 (b) At any time after an event will be a so called “baseball” arbitration under which the third arbitrator must select either the Landlord estimate of Default Fair Market Rental or the Tenant’s estimate of Fair Market Rental, as described in Section 24 such estimates are submitted to the third arbitrator by the parties).
(ix) Landlord and Tenant will pay (i) the fee of each appraiser that each has chosen, and (ii) half the fee of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodthird appraiser.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
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Options to Extend Term. (a) Provided that Tenant is not in default under this Lease, subject to the terms of this Section 2.04, Landlord hereby grants to Tenant three (3) option(s) (the "Option(s)") to extend the Lease Term for additional period(s) of five (5) years each (the "Extension(s)"). Each Option shall have options be exercised only by written notice delivered to Landlord not more than three hundred sixty-five (365) days nor less than two hundred and seventy (270) days before the expiration of the Lease Term. If Tenant fails to deliver Landlord written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options shall lapse and there shall be no further right to extend the Lease Term. Tenant acknowledges and agrees that time is of the essence in exercising each Option.
(b) If Tenant timely and properly exercises an Option hereunder, then said additional five (5) year Extension (each, an “Option”"Extension Period") to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on be under the same terms and conditions as provided in this Lease. Basic Annual , except as follows:
(i) the Extension Period shall begin on the day after the expiration of the original Lease Term or the preceding Extension of the Lease Term, as applicable; and
(ii) the annual Base Rent payable by Tenant during such Extension Period shall equal ninety-five be determined based on the Fair Market Rental Rate (as defined in subsection (c) below), which Fair Market Rental Rate shall increase by two percent (952%) on each anniversary date of the Term Commencement Date during such Extension Period (i.e. shall include a two percent (2%) annual escalator).
(c) For purposes of this Section 2.04, the "Fair Market Rental Rate" shall mean the arm's length, fair market value annual rental rate per rentable square foot under renewal leases and amendments entered into on or about the date on which the Fair Market Rental Rate is being determined hereunder, for space comparable to the Premises (“FMV”excluding the Tenant Improvements/Equipment) for comparable office/research and development projects in the Brisbane/Peninsula market same geographic submarket. The determination of Fair Market Rental Rate shall take into account all relevant factors, including any material economic differences between the terms of this Lease and any comparison lease, such as of rent abatements, construction costs, leasing commissions and other concessions and the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentagemanner, if any, that constitutes a market rate in which the landlord under any such lease is reimbursed for operating expenses and taxes. The determination of Fair Market Rental Rate shall also take into consideration any reasonably anticipated changes in the Fair Market Rental Rate from the time such Fair Market Rental Rate is being determined and the time such Fair Market Rental Rate will become effective under this Lease. As part of the determination of Fair Market Rental Rate, the annual increase in said rate for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end each year of the expiration of the then-current Term of this LeaseExtension Period shall also be determined.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease Agreement (SunOpta Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent during each Option term shall equal ninety-five percent (95%) of the fair market value (“FMV”) rent for comparable office/research the cities of Newark and development projects in the Brisbane/Peninsula market Fremont as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentageOption term, if any, that constitutes a including fair market rate annual increase for such marketrent increases (“FMR”). In the event that If Landlord and Tenant disagree cannot agree on the FMR for an Option term within thirty (30) days after the date on which Tenant notifies Landlord that it is exercising an Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and Tenant shall each furnish to the other a notice in writing (a “FMR Notice”) stating such party’s estimate of the FMR. Such notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Fremont/Newark area (an “Appraiser”) stating such Appraiser’s opinion of FMR. If, within twenty (20) days after expiration of the Submission Period, Landlord and Tenant still cannot agree on the FMR, the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days thereafter. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Northern California panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMVFMR, they which opinion shall hire an appraiser reasonably acceptable be strictly limited to both partieschoosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, the and each shall pay for its own appraisal. The cost of which the Referee shall be split shared equally by Landlord and Tenant. In determining FMR, which appraiserLandlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors, including, without limitation, (i) the size of the Premises and length of the Option term, (ii) Tenant’s decision creditworthiness, (iii) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as to free rent, tenant improvement allowances, and moving allowances, and (iv) the FMV shall be binding on both partiesquality and location of the Building and the Project.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current initial Term of this Lease.
. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this paragraph. 42.4. Notwithstanding anything contained in this Section Article 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any During the time after an event of any Default as described in Section 24 Article 32 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default Defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the exercises an Option, whether or not Tenant cures has cured such Defaults within any applicable cure period.
Defaults. 42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Daystar Technologies Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the Xxxxxx Xxxxx submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than fifteen (15) months prior to the date the Term SMRH:418641349.9 61 is then scheduled to expire, request Landlord’s estimate of each extended term by the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such marketnotice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Project. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Xxxxxx Xxxxx laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the American Arbitration Association or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the AAA shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Xxxxxx Xxxxx submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Term, but in no event earlier than fifteen (15) months prior to the expiration of the then-current Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. SMRH:418641349.9 62 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in monetary or material, non-monetary default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two defaulted in the performance of any its monetary obligations under this Lease three (23) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults monetary defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Affymetrix Inc)
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease by three (3) years each on after the same terms and conditions as this Leasesecond Extension Period.
3.2.1. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date If Tenant exercises the respective an Extension Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than eighteen (918) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period.
42.43.2.2. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s 's reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3. If Tenant shall fail to timely exercise an Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise an Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below), then immediately upon such termination, assignment, transfer or sublease, the Extension Option(s) shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4. The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor's Guaranty that explicitly extends such Guarantor's obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's timely and proper exercise of an Extension Option.
Appears in 1 contract
Samples: Lease Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant shall have two (2) options (each, each an “"Extension Option”") to extend the Term of this Lease upon for a period of five (5) years each (each an "Extension Period"), on the following same terms and conditions:
42.1. conditions in effect under this Lease immediately prior to the commencement of the Extension Period, except that (a) Tenant shall have two (2) consecutive Options no further right to extend the Term of this Lease by three after the second Extension Period, (3b) years each on the same terms Base Rent payable during the Extension Period shall be an amount equal to One Hundred Three and conditions as this Lease. Basic Annual Rent shall equal ninetyOne-five percent Quarter Percent (95103.25%) of the fair market value Base Rent in effect immediately prior to the Extension Period, and such Base Rent shall thereafter be subject to an annual upward adjustment of three and one-quarter percent (“FMV”3.25%) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises then-current Base Rent commencing on the respective Option, increased on each first annual anniversary of the commencement of each extended term by the Extension Period and on every successive annual anniversary for the duration of the Extension Period.
3.2.1. If Tenant exercises an Extension Option, such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as Extension Option shall apply to the FMV, they shall hire entire Premises (and no less than the entire Premises). Tenant may exercise an appraiser reasonably acceptable to both parties, the cost of which shall be split equally Extension Option only by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord irrevocable and unconditional written notice of its election to exercise thereof (the applicable Option at least nine "Extension Notice") not later than six (96) months prior to the end commencement date of the expiration Extension Period. Upon delivery of the then-current Term of this LeaseExtension Notice, Tenant shall be irrevocably bound to lease the Premises for the Extension Period. 2 The Closing Date under the Purchase Agreement. 3 The date that is 180 months from the Commencement Date.
42.43.2.2. Notwithstanding anything contained in this Section 42the foregoing, Tenant shall not have the right to exercise an Option:
Extension Option (ai) During during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s 's reasonable satisfaction; or
(bii) At at any time after an event of any Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Section 3.2, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
or (ciii) In in the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve six (12)-month 6)-month period immediately prior to the date that Tenant intends to exercise the an Extension Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
3.2.3. If Tenant shall fail to timely exercise the Extension Option in accordance with the provisions of this Section 3.2, then the Extension Option shall terminate, and shall be null and void and of no further force and effect. If this Lease or Tenant's right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or if Tenant shall have assigned or transferred any interest in this Lease or sublet any part of the Premises (other than in the case of a Permitted Transfer as set forth in Section 16.8 below), then immediately upon such termination, assignment, transfer or sublease, the Extension Option shall simultaneously terminate and become null and void. Time is of the essence with regard to this Section 3.2.
3.2.4. The Extension Options are conditioned upon each Guarantor executing an amendment to such Guarantor's Guaranty that explicitly extends such Guarantor's obligations so that each Guarantor guarantees Tenant's Lease obligations incurred pursuant to Tenant's timely and proper exercise of an Extension Option. Notwithstanding anything in this Lease or the applicable Guaranty to the contrary, Landlord agrees to execute a commercially reasonable form of subordination agreement that subordinates Landlord's rights under a Guaranty to an institutional lender’s or third party financing source’s rights with respect to a contemplated financing by the applicable Guarantor, provided that the following conditions are satisfied: 1) the subordination of the Guaranty is a requirement of the lender or other third party financing source to provide the financing to the Guarantor; and 2) at the time of Landlord's execution of such subordination agreement, (a) neither Tenant nor any Guarantor is then in default of its obligations under the Lease or any Guaranty; and (b) neither Tenant nor any Guarantor has defaulted on its obligations under either the Lease or any Guaranty more than two (2) times during the immediately prior six (6) month period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Innovative Industrial Properties Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease. , except as follows:
41.1 Basic Annual Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the Seattle market of comparable age, quality, level of finish and proximity to amenities and public transit including market rate annual adjustments (“FMV”), but in no event be less than the Basic Annual Rent in effect immediately prior to the Option term for the first year of the Option term. Tenant may, no more than twelve (12) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (v) the size of the Premises, (w) the length of the Option term, (x) rent in comparable office/research and development projects buildings in the Brisbane/Peninsula market relevant market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, leasing commissions, and moving allowances, (y) Tenant’s creditworthiness and (z) the quality and location of the date Tenant exercises Building and the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketProject. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Seattle laboratory/research and Tenant disagree as to development leasing market (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (i) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Seattle market and (ii) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The Baseball Arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both parties.
42.2upon Landlord and Tenant and shall serve as the basis for determination of Basic Annual Rent payable for the applicable Option term. Notwithstanding anything in this Lease to If, as of the contrarycommencement date of an Option term, the amount of Basic Annual Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Basic Annual Rent equal to the Basic Annual Rent payable with respect to the last year of the then-current Term. After the final determination of Basic Annual Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Basic Annual Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of the FMV determined pursuant to this Section.
41.2 The Option is not assignable separate and apart from this Lease except that it shall be exercisable by a Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretionAffiliate as a result of an Exempt Transfer.
42.3. The Options are 41.3 An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine not more than sixteen (916) months and not less than ten (10) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSection.
42.4. 41.4 Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is actually in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed defaulted (beyond applicable notice and cure periods) in the performance of either a Default material monetary obligation or material non-monetary obligation under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve Extended Term or Option Term (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodas applicable).
42.5. 41.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.441.4.
42.6. 41.6 All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a material monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a material non-monetary default (other than a material monetary default) within thirty (30) days after the date Landlord gives written notice to Tenant of such default or (c) Tenant has defaulted (beyond applicable notice and cure periods) with respect to either a material monetary obligation or material non-monetary obligation under this Lease three two (32) or more times and a service during the Extended Term or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsOption Term (as applicable).
Appears in 1 contract
Samples: Lease (NanoString Technologies Inc)
Options to Extend Term. Tenant shall have Subject to the terms of this Section 3.3, Lessor hereby grants Lessee six (6) options (each, an “a "Renewal Option”," and collectively, the "Renewal Options") to extend the Term of this Lease upon for EXHIBIT 10.27 successive periods of ten (10) years each beyond the following terms Expiration Date (each, a "Renewal Term," and conditions:
42.1collectively, the "Renewal Terms"). Tenant The Renewal Options shall have two be personal to and may only be exercised by Lessee, any Person to whom Lessee assigns its entire right, title and interest in and to this Lease pursuant to Section 13.1 below (2) consecutive Options but specifically excluding any sublessee), any Lender who acquires and succeeds to extend the Term interest of Lessee under this Lease by three virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to court order or pursuant to a power of sale contained in a Leasehold Mortgage, or by assignment or other conveyance in lieu of foreclosure, and any transferee or other successor or assign of such Lender; provided, however, that each Specific Parcel Lease shall contain renewal options with terms identical to those set forth in this Section 3.3. The Renewal Options shall be effective only if no Material Default has occurred and is continuing (3taking into account all applicable grace or cure periods) years each on hereunder, either at the time of exercise of the respective Renewal Option or at the time of commencement of the respective Renewal Term. Each Renewal Option commencing with the second (2nd) Renewal Option shall be effective only if Lessee has validly exercised all prior Renewal Option(s). The Renewal Options must be exercised, if at all, by written notice (each, an "Election Notice") from Lessee to Lessor given not more than twenty- four (24) months nor less than twelve (12) months prior to the then-current Expiration Date, subject to the provisions of Section 17.3. Any such Election Notice given by Lessee to Lessor shall be irrevocable. If Lessee fails to exercise a Renewal Option in a timely manner as provided for above, the Renewal Option shall be void. The Renewal Terms shall be upon the same terms and conditions as this Lease. Basic the initial Term, except that the Annual Base Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market be adjusted effective as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by the first (1st) Renewal Term and every five (5) years thereafter during such percentageRenewal Term and all subsequent Renewal Terms, if any, that constitutes a market rate annual increase for such market. In in accordance with the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described procedure set forth in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default4.1(b) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodbelow.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Ground Lease (Equinix Inc)
Options to Extend Term. Tenant shall have two (2) successive options (each, an “Option”) to extend the Term of this Lease for periods of five (5) years each (the “Extended Terms”), subject to the further provisions of this Section 30.
(a) Tenant must exercise Tenant’s option with respect to an Extended Term, if at all, by giving written notice of exercise to Landlord not later than 270 days prior to the Expiration Date of the initial Term or the last day of the first Extended Term, as the case may be. Any notice of extension by Tenant is called “Tenant’s Notice”.
(b) In the event an option to extend is timely exercised, this Lease shall be extended for the Extended Term upon all of the following terms and conditions:conditions of this Lease, provided that the Base Rent shall be 100% of the Prevailing Market Rate of the Premises as of the date of the commencement of the Extended Term determined as provided below.
42.1. (c) Tenant shall have two (2) consecutive Options no right to extend the Term of this Lease by three (3) years each if Tenant’s Notice is not timely delivered or if Tenant is in Default under this Lease at the time Tenant’s Notice is delivered or on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) Expiration Date of the fair market value (“FMV”) for comparable office/research and development projects in initial Term or the Brisbane/Peninsula market as last day of the date Tenant exercises first Extended Term, as the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiescase may be.
42.2. Notwithstanding anything in this Lease to the contrary, (d) Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election have no further rights to exercise extend the applicable Option at least nine (9) months prior to the end of Term beyond the expiration of the then-current Term of this Leasesecond Extended Term.
42.4. Notwithstanding anything contained in this Section 42, Tenant (e) The Prevailing Market Rate for an Extended Term shall not have mean an annual base rent amount per square foot of rentable area and other rental charges for the right Term equivalent to exercise an Option:
the period for which the Prevailing Market Rate is being determined beginning on the first (a1st) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 day of the Lease subject period that a willing, credit-worthy non-equity tenant leasing space comparable to the Premises would pay and a willing landlord of an office building comparable to the Building in the West Omaha market would accept at arms length. Appropriate consideration will be given to the type of transaction involved (providedi.e. whether a new lease, howeverrenewal lease or lease of expansion space) net rent, thatrent escalations, tenant concessions (e.g. free rent, tenant improvements and other cash allowances), total amount of brokerage commissions, the credit-worthiness of the tenant, and other generally applicable terms and conditions prevailing for purposes the comparable space in comparable buildings located in the West Omaha market, as evidenced by then recently completed renewals, or new leases within the West Omaha market. Within thirty (30) days of this Subsection 42.4(b)receipt of Tenant’s notice to Landlord of the exercise of Tenant’s option for an Extended Term, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because its determination of the provisions of Section 42.4.
42.6annual Base Rent for the Extended Term. All of Tenant’s rights under Such determination by Landlord shall be conclusive and binding on Tenant as the provisions of then Prevailing Market Rate for the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option ifExtended Term unless Tenant shall, after such exercise, but prior to the commencement date of the new term, within thirty (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2030) days after written notice from receipt of such determination, notify Landlord to Tenant, (b) that Tenant fails to commence to cure a default (other than a monetary default) disputes Landlord’s determination. If such dispute is not resolved within thirty (30) days after the date giving of such dispute notice by Tenant, Tenant shall have the option to withdraw its election to extend the Term through such Extended Term by giving Landlord gives written notice of such withdrawal within ten (10) days after the expiration of such thirty (30) day period. If Tenant elects to withdraw its election to extend the Term, all of Tenant’s rights to extend the Term hereunder shall be null and void and of no further force or effect. If Tenant does not withdraw its election to extend the Term, the Lease shall continue for the Extended Term at the annual Base Rent determined and specified by Landlord in Landlord’s notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times Tenant, and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultson the other terms and conditions set forth in the Lease.
Appears in 1 contract
Samples: Office Lease (Telvent Git S A)
Options to Extend Term. Tenant (a) Provided Lessee is not then in default, Lessee shall have options (each, an “Option”) the right to extend the Term term of this Lease upon the following terms and conditions:
42.1. Tenant shall have for two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both partiessuccessive periods, the cost first of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to for ten (10) full Lease Years commencing on the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to day following the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer expiration date of Tenant’s interest in the Initial Term of this Lease, without Landlord’s prior written consent, and the second of which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise shall be for five (5) full Lease Years commencing on the applicable Option at least nine (9) months prior to the end of day following the expiration of the then-current Term of this Leasefirst extended term, in the event such first option has been exercised by Lessee.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord Each such option shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Defaultexercised, if such Default is susceptible at all, by written notice given by Lessee to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the Lessor no earlier than twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate 12) months and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but later than six (6) months prior to the commencement date of the new term, each respective option period. Within thirty (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (2030) days after written notice from Landlord the exercise of any such option by Lessee, Lessor shall provide Lessee with Lessor's initial determination of the rental adjustment to Tenantbe effective during the extension period as provided in Section 2.02 below, (b) Tenant fails subject to commence to cure a default (other than a monetary default) the arbitration provisions of Section 2.06 below if Lessee disagrees with such initial determination within thirty (30) days after the date Landlord gives receipt thereof. Within thirty (30) days after final determination of such rental adjustment (whether by mutual agreement or by arbitration), Lessee may elect to terminate this Lease and thereby cancel its exercise of such option to extend by giving written notice to Tenant Lessor, said termination to be effective on (i) the day the Initial Term or first extended term, as the case may be, expires or (ii) on the 180th day following the giving of said notice, whichever last occurs. Pending the determination of the rental adjustment and, in the event Lessee exercises its right to terminate after final determination of the rental adjustment, prior to the effective date of such default termination, the monthly rent being paid by Lessee immediately before the rental adjustment shall continue to be paid by Lessee to Lessor, and any difference in the monthly rent actually paid and that due for any period subsequent to the expiration of the Initial Term or first extended term, as the case may be, shall, when determined, be paid promptly to Lessor. In the event this Lease shall have expired or been terminated, Lessee shall thereafter have no right or privilege of extending this Lease, and notwithstanding anything to the contrary contained in this Section 1.03, the failure of Lessee to exercise the option for the first extension period shall be conclusively presumed to be a waiver by Lessee of its rights to exercise the option for any subsequent extension period.
(c) Tenant has defaulted under this All of the terms, covenants and conditions provided herein with respect to the Initial Term shall apply during each such extension period, including without limitation, the adjustment of the annual Minimum Rent upon the expiration of each fifth (5th) Lease three (3) or more times and a service or late charge under Year as provided in Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults2.02 below.
Appears in 1 contract
Samples: Lease (Harbor Bancorp /)
Options to Extend Term. 22.1 Provided that Tenant shall have options (each, an “Option”) not then be in default with respect to extend the Term any material covenant of this Lease upon lease beyond the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) expiration of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentageapplicable grace period, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall have the option to extend the term of this lease for an additional period of ten (10) years (the "First Extended Term"); provided, however, that (a) Tenant shall notify Landlord not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, earlier than twenty-four (24) months and not later than the date which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine is eighteen (918) months prior to the end of then Expiration Date that Tenant desires such extension and (b) such extension shall be on the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything same terms, covenants and conditions as are contained in this lease, except with respect to (i) the annual Fixed Rent which shall be determined in the manner provided for in Section 4222.2, Tenant shall not have (ii) such provisions in this lease which apply only to the right initial term, and (iii) the option herein granted to exercise an Option:extend the initial term of this lease.
(a) During Fixed Rent payable by Tenant during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions First Extended Term of this Lease and continuing until Tenant has cured lease shall be equal to $2,850,000 per annum, subject to the specified default to Landlord’s reasonable satisfaction; orCPI Adjustments hereinafter described.
(b) At any time after an event The first day of Default as described the First Extended Term shall be a CPI Adjustment Date. Accordingly, if the Adjustment Index for such CPI Adjustment Date has increased over the Beginning Index, the initial Fixed Rent specified in Section 24 22.2(a) shall increase commencing with such CPI Adjustment Date by the product of the Lease (provided, however, that, for purposes following: $2,850,000 multiplied by the percentage increase of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; orthe Adjustment Index over the Beginning Index.
(c) In the event that Tenant has committed a Default two The seventh (27th) or more times and a service or late charge has become payable under Section 24.1 for each anniversary of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new termFirst Extended Term shall also be a CPI Adjustment Date. Accordingly, if the Adjustment Index for such CPI Adjustment Date has increased over the Index in effect for the month immediately preceding the month in which the First Extended Term commenced (the "First Extension Index"), then the Fixed Rent determined pursuant to Section 22.2(b) shall increase commencing with such CPI Adjustment Date by the product of the following: 60% of the Fixed Rent determined pursuant to Section 22.2(b) multiplied by the percentage increase of the Adjustment Index over the First Extension Index.
22.3 Provided that Tenant shall not then be in default with respect to any material covenant of this lease beyond the expiration of the applicable grace period, if any, Tenant shall have the option to extend the term of this lease for an additional second period of ten (10) years (the "Second Extended Term"); provided, however, that (a) Tenant fails shall notify Landlord not earlier than twenty-four (24) months and not later than eighteen (18) months prior to pay the then Expiration Date that Tenant desires such extension. If the option is so exercised, the Second Extended Term shall be on the same terms, covenants and conditions as are contained in this lease, except with respect to Landlord a monetary obligation of Tenant (i) the annual Fixed Rent which shall be determined in the manner provided for a period of twenty (20) days after written notice from Landlord to Tenantin Section 22.4, (bii) such provisions in this lease which apply only to the initial term or the First Extended Term and (iii) the option herein granted to extend the First Extended Term of this lease.
22.4 (a) Fixed Rent payable by Tenant fails during the Second Extended Term of this lease shall be equal to commence $2,850,000 per annum, subject to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaultsCPI Adjustments hereinafter described.
Appears in 1 contract
Samples: Lease Agreement (Rayovac Corp)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by two (2) years each as to the entire Premises (and not less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this the Lease. Basic Annual , except as follows:
18.1 Base Rent shall equal ninety-five percent be adjusted on the first (95%1st) day of the fair market value (“FMV”) for comparable office/research extension term and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary date thereof in accordance with Section 1.16 of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesLease.
42.2. Notwithstanding anything in this Lease to 18.2 No Option is assignable separate and apart from the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are 18.3 An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Term. Time shall be of this Leasethe essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option.
42.4. 18.4 Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At Option at any time after an event while any Event of Default as described in Section 24 Article 14 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) has occurred and is continuing until Tenant cures any such Event of Default, if such Event of Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. 18.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.418.4.
42.6. 18.6 All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect if (a) Tenant does not timely exercise an Option, (b) even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation an Event of Tenant for a period Default as described in Article 14 of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the Lease has occurred and is continuing uncured on the commencement date Landlord gives notice to Tenant of such default the new term or (c) or Tenant has defaulted under this Lease three fails to provide Landlord with a replacement or amended Letter of Credit on or before the beginning of the extension term with an expiration date that is at least ninety-five (395) or more times and a service or late charge under Section 24.1 has become payable for any days following the expiration of the new term, as so extended, provided that an increased amount of such default, whether or Letter of Credit shall not Tenant has cured such defaultsbe required in connection therewith.
Appears in 1 contract
Samples: Lease (Ironwood Pharmaceuticals Inc)
Options to Extend Term. Tenant shall have two (2) consecutive options (each, an “Option”) to extend the Term of this Lease by five (5) years each (each, an “Option Term”) as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease. Basic Annual , except as follows:
(a) Base Rent at the commencement of each Option Term shall equal ninety-five the greater of (x) one hundred three percent (95103%) of the then-current Base Rent and (y) the then-current fair market value for comparable office and laboratory space in the Metropolitan Area of comparable use, age, quality, level of finish and proximity to amenities and public transit (“FMV”), and in each case shall continue to be subject to an annual upward adjustment of three percent (3%) of the then-current Base Rent. Tenant may, no more than three (3) months prior to the last date on which Tenant may exercise the Option, request Landlord’s estimate of the FMV for the next Option Term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives written notice to exercise the Option, such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV and, if not, shall specify Tenant’s proposed FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (i) the size of the Premises, (ii) the length of the Option Term, (iii) rent in comparable office/research and development projects buildings in the Brisbane/Peninsula market as relevant market, (iv) Landlord shall have no obligation to make improvements, decorations, repairs, or alterations to the Premises for the Option Term and FMV for the Option Term shall not be reduced either (aa) by reason of such fact, (bb) to take into account any rental concession whatsoever (including, but not limited to, rent abatements, allowances for moving expenses, lease assumptions, or other concessions), or (cc) to take into account the absence of any cost or expense which Landlord would have incurred had the Premises been leased to a person or entity other than Tenant, (v) Tenant’s creditworthiness and (vi) the quality and location of the date Tenant exercises Building and the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such marketProperty. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising the Option, then the FMV shall be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of office and laboratory leasing in the Metropolitan Area or other person mutually agreed to by Landlord and Tenant disagree as to (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (“JAMS”). Unless otherwise mutually agreed by Landlord and Tenant, which appraiser’s decision as the Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of office and laboratory space in the Metropolitan Area and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party, its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The Baseball Arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or the one submitted by Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both parties.
42.2. Notwithstanding anything in this Lease upon Landlord and Tenant and shall serve as the basis for determination of the initial Base Rent payable for the applicable Option Term pursuant to the contraryfirst sentence of Section (a) of this Section 38.20(a). If, as of the commencement date of an Option Term, the amount of Base Rent payable during the Option Term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term, and any discrepancy shall be reconciled between Landlord and Tenant within fifteen (15) days after such determination. After the final determination of Base Rent payable for the Option Term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option Term. Any failure of the parties to execute such amendment shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer affect the validity of Tenant’s interest in the Base Rent for the Option Term determined pursuant to this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretionSection 38.20.
42.3. (b) The Options are conditional not assignable separate and apart from this Lease.
(c) Each Option is conditioned upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this LeaseSubsection 38.20(c).
42.4. (d) Notwithstanding anything contained in this Section 4238.20 to the contrary, Tenant shall not have the right to exercise an Option:
(a) During Option during the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any . Any attempted exercise of an Option during a period of time after an event during which Tenant is in default shall be void and of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5no effect. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4this Subsection 38.20(d).
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Options to Extend Term. Tenant shall have Subject to the terms of this Section 3.3, Lessor hereby grants Lessee six (6) options (each, an “a "Renewal Option”," and collectively, the "Renewal Options") to extend the Term of this Lease upon for EXHIBIT 10.27 *CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. successive periods of ten (10) years each beyond the following terms Expiration Date (each, a "Renewal Term," and conditions:
42.1collectively, the "Renewal Terms"). Tenant The Renewal Options shall have two be personal to and may only be exercised by Lessee, any Person to whom Lessee assigns its entire right, title and interest in and to this Lease pursuant to Section 13.1 below (2) consecutive Options but specifically excluding any sublessee), any Lender who acquires and succeeds to extend the Term interest of Lessee under this Lease by three virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to court order or pursuant to a power of sale contained in a Leasehold Mortgage, or by assignment or other conveyance in lieu of foreclosure, and any transferee or other successor or assign of such Lender; provided, however, that each Specific Parcel Lease shall contain renewal options with terms identical to those set forth in this Section 3.3. The Renewal Options shall be effective only if no Material Default has occurred and is continuing (3taking into account all applicable grace or cure periods) years each on hereunder, either at the time of exercise of the respective Renewal Option or at the time of commencement of the respective Renewal Term. Each Renewal Option commencing with the second (2nd) Renewal Option shall be effective only if Lessee has validly exercised all prior Renewal Option(s). The Renewal Options must be exercised, if at all, by written notice (each, an "Election Notice") from Lessee to Lessor given not more than twenty- four (24) months nor less than twelve (12) months prior to the then-current Expiration Date, subject to the provisions of Section 17.3. Any such Election Notice given by Lessee to Lessor shall be irrevocable. If Lessee fails to exercise a Renewal Option in a timely manner as provided for above, the Renewal Option shall be void. The Renewal Terms shall be upon the same terms and conditions as this Lease. Basic the initial Term, except that the Annual Base Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market be adjusted effective as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by the first (1st) Renewal Term and every five (5) years thereafter during such percentageRenewal Term and all subsequent Renewal Terms, if any, that constitutes a market rate annual increase for such market. In in accordance with the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described procedure set forth in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default4.1(b) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure periodbelow.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Ground Lease (Equinix Inc)
Options to Extend Term. (a) Landlord hereby grants to Tenant shall have options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options options to extend the Term for a period of this Lease by three five (35) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Optiontime, increased on each annual anniversary of the commencement of each extended term such option to be exercised by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election exercise to exercise Landlord in the applicable Option manner provided in this Lease at least nine ninety (990) months days prior to the end of (but not more than one hundred twenty (120) days prior to) the expiration of the then-current Term Term, as it may have been previously extended. No extension option may be exercised by Tenant if an Event of this Lease.
42.4. Notwithstanding anything contained in this Section 42Default has occurred and is then continuing or any facts or circumstances then exist which, Tenant shall not have with the right to exercise giving of notice or the passage of time, or both, would constitute an Option:
(a) During Event of Default either at the time commencing from of exercise of the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured option or at the specified default to Landlord’s reasonable satisfaction; ortime the applicable Term would otherwise have expired if the applicable option had not been exercised.
(b) At any time after an event of Default as described in Section 24 of If Tenant exercises its option[s] to extend the Lease (provided, however, that, for purposes of this Subsection 42.4(b)Term, Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Defaultshall, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives receipt of Tenant's notice of exercise, notify Tenant in writing of Landlord's reasonable determination of the Base Rent for the Demised Premises for the applicable five (5) year option period , which amount shall be based on the greater of (i) the market rate for such space or (ii) the Annual Base Rent rate to be in effect immediately prior to the commencement of such option period. Tenant shall have thirty (30) days from its receipt of Landlord's notice to notify Landlord in writing that Tenant does not agree with Landlord's determination of the Base Rent and that Tenant elects to determine the Prevailing Market Rate (as defined and calculated below). If Tenant does not notify Landlord of such default or election within thirty (c30) Tenant has defaulted under this Lease three days of its receipt of Landlord's notice, Base Rent for the Demised Premises for the applicable extended term shall be the Base Rent set forth in Landlord's notice to Tenant. The phrase "Prevailing Market Rate" shall mean the then prevailing market rate for base minimum rental calculated on a per square foot basis for leases covering buildings comparable to the Building (3) or more times and a service or late charge under Section 24.1 has become payable as adjusted for any variances between such defaultbuildings and the Building) located in DeSoto County, whether Mississippi industrial submarket area (hereinafter referred to as the "Market Area"). The Prevailing Market Rate shall be determined by an appraisal procedure as follows: In the event that Tenant notifies Landlord that Tenant disagrees with Landlord's determination of the market rate and that Tenant elects to determine the Prevailing Market Rate, then Tenant shall specify, in such notice to Landlord, Tenant's selection of a real estate appraiser who shall act on Tenant's behalf in determining the Prevailing Market Rate. Within twenty (20) days after Landlord's receipt of Tenant's selection of a real estate appraiser, Landlord, by written notice to Tenant, shall designate a real estate appraiser, who shall act on Landlord's behalf in the determination of the Prevailing Market Rate. Within twenty (20) days of the selection of Landlord's appraiser, the two (2) appraisers shall render a joint written determination of the Prevailing Market Rate, which determination shall take into consideration any differences between the Building and those buildings comparable to the Building located in the Market Area, including without limitation age, location, setting and type of building. If the two (2) appraisers are unable to agree upon a joint written determination within said twenty (20) day period, the two appraisers shall select a third appraiser within such twenty (20) day period. Within twenty (20) days after the appointment of the third appraiser, the third appraiser shall render a written determination of the Prevailing Market Rate by selecting, without change, the determination of one (1) of the original appraisers as to the Prevailing Market Rate and such determination shall be final, conclusive and binding. All appraisers selected in accordance with this subparagraph shall have at least ten (10) years prior experience in the commercial leasing market of the Market Area and shall be members of the American Institute of Real Estate Appraisers or not similar professional organization. If either Landlord or Tenant has cured fails or refuses to select an appraiser, the other appraiser shall alone determine the Prevailing Market Rate. Landlord and Tenant agree that they shall be bound by the determination of Prevailing Market Rate pursuant to this paragraph. Landlord shall bear the fee and expenses of its appraiser; Tenant shall bear the fee and expenses of its appraiser; and Landlord and Tenant shall share equally the fee and expenses of the third appraiser, if any. Notwithstanding anything to the contrary contained herein, in the event the Prevailing Market Rate as determined herein is less than the Annual Base Rent to be in effect immediately prior to the commencement of such defaultsoption period, the Base Rent during the applicable extension Term shall equal the Annual Base Rent in effect during the last year of the Term.
Appears in 1 contract
Options to Extend Term. Tenant shall have two (2) consecutive options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease. Basic Annual , except that Base Rent shall equal ninetybe at the then-five percent (95%) of current fair market value for the Premises to be determined as follows. If Tenant shall have timely exercised an Option, the parties shall endeavor to agree upon the fair market rental value (“FMV”) for comparable office/research and development projects in of the Brisbane/Peninsula market Premises, as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement first day of each extended term by such percentageextension term. In determining fair market rental value, if anythe parties shall take into account all relevant factors, including, without limitation, that constitutes a market rate the Base Rent is subject to an automatic annual increase for such marketincrease, and the Premises shall be deemed to have Building standard improvements, notwithstanding that Tenant may have installed above standard improvements. In the event that Landlord and the parties are unable to agree upon such fair market value for either extension term within thirty (30) days after the giving of the notice of exercise of such Option, as the case may be, then Tenant disagree as shall have the right at any time prior to the FMVappointment of a Baseball Arbitrator (as defined below) to void the exercise of the applicable Option, they shall hire an appraiser reasonably acceptable upon notice to both partiesLandlord, or if Tenant does not so void such notice then either party may request that the cost same be determined as follows: A senior officer of which a nationally recognized leasing brokerage firm with local knowledge of San Diego County laboratory / research and development leasing market (the “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the San Diego Chapter of the American Arbitration Association or any successor organization thereto (the “AAA”). The Baseball Arbitrator, but not necessarily his or her employer, selected by the parties or designated by the President of the AAA shall (i) have at least ten (10) years experience in the leasing of office and laboratory / research and development space in San Diego County and (ii) not have done work for, or been employed or retained by, either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to his/her appointment pursuant hereto. Landlord and Tenant shall each submit to the FMV Baseball Arbitrator and to the other its determination of the fair market rental value. The Baseball Arbitrator shall afford to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) rent determinations more closely represents the fair market rental value of the Premises. The arbitrator may not select any other fair market rental value for the Premises other than one submitted by Landlord or Tenant. The determination of the party so selected or designated shall be binding upon Landlord and Tenant and shall serve as the basis for the determination of the Base Rent payable for the applicable extension term. If, as of the commencement date of the applicable extension term, the amount of the Base Rent payable during the applicable Renewal Term in accordance with this Article 42 shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable in the immediately preceding year subject to escalation as provided in Article 8 or Section 42.1, as applicable. After the final determination of the Base Rent payable for such extension term, the parties promptly and appropriately shall adjust rental payments theretofore made during the applicable extension term and shall execute a written agreement specifying the amount of the Base Rent as so determined. Any failure of the parties to execute such written agreement shall not affect the validity of the Base Rent as so determined.
42.1. Base Rent shall be increased by three percent (3%) on both partiesthe first (1st) anniversary of the first (1st) day of the applicable extension term and each annual anniversary date thereof.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease more than two (2) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Regulus Therapeutics Inc.)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by seven (7) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (“FMV”) for comparable office/research No Option is assignable separate and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesapart from this Lease.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term of this Lease. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this paragraph.
42.3. Base Rent during each Option term shall equal ninety-five percent (95%) of the fair market rent as of the commencement of such Option term, including fair market rent increases (“FMR”). If Landlord and Tenant cannot agree on the FMR for an Option term within thirty (30) days after the date on which Tenant notifies Landlord that it is exercising an Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and Tenant shall each furnish to the other a notice in writing (a “FMR Notice”) stating such party’s estimate of the FMR. Such notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Fremont/Newark area (an “Appraiser”) stating such Appraiser’s opinion of FMR. If, within twenty (20) days after expiration of the Submission Period, Landlord and Tenant still cannot agree on the FMR, the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days thereafter. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Northern California panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMR, which opinion shall be strictly limited to choosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, and each shall pay for its own appraisal. The cost of the Referee shall be shared equally by Landlord and Tenant. In determining FMR, Landlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors, including, without limitation, (i) the size of the Premises and length of the Option term, (ii) Tenant’s creditworthiness, (iii) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, and moving allowances, and (iv) the quality and location of the Premises and the Project.
42.4. Notwithstanding anything contained in this Section Article 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 32 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times and a service or late charge has become payable under Section 24.1 32.1 for each of such Defaults defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three two (32) or more times and a service or late charge under Section 24.1 32.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Revance Therapeutics, Inc.)
Options to Extend Term. Tenant shall have options (each, an “Option”) is given the option to extend the Term Initial Terms, respectively, as set forth herein, on all of this Lease upon the following terms provisions contained herein by giving notice of exercise (the "Option Notice") to Landlord not more than 360 days and conditions:
42.1not less than 270 days before the Expiration of the respective Initial Terms or Extended Terms of the Lease. Tenant shall have two 5-year extension options for the Bank Branch and three 5-year options for the rest of the Building (2) consecutive Options respectively "Option Terms"). As for the rest of the Building, Tenant may exercise its option to extend the Term term for some or all of this Lease the Rentable Area in increments as set forth below, at Tenant's sole discretion, provided that if Tenant has previously returned any of such Rentable Area to Landlord, Tenant shall be deemed to have surrendered its right to relet such space pursuant to the options contained herein. In determining the portions of the second and third floors of the Building as to which Tenant may exercise its option, such portion (a) may not be less than 2,500 square feet of Rentable Area or such other amount as may be agreed to by three both Landlord and Tenant in writing; (3b) years each must not leave less than 2,500 square feet of Rentable Area on any floor of the Building, or such other amount as may be agreed to by both Landlord and Tenant in writing; (c) must be contiguous to any other portion leased on the same terms floor; (d) must leave a remainder on any floor which is, and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent must itself be, in compliance with all applicable building and fire codes, governmental laws, regulations or restrictions; and (95%e) of the fair market value (“FMV”) for comparable office/research and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall may not be split equally between the second and third floors unless all of one of those floors is leased by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both parties.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option at least nine (9) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (providedProvided, however, that, with respect to the first floor of the Building, Tenant may only exercise its option for purposes either the Bank Branch or the entire first floor. If Tenant is in default on the date of giving the Option Notice beyond any time to cure such default allowed by statute or created under this Subsection 42.4(bLease, whichever is greater ("Cure Period"), Landlord the Option Notice shall be totally ineffective, or if Tenant is in default beyond any Cure Period on the date the Extended Term is to commence and does not cure the default within the Cure Period, the Extended Term shall not be required to provide Tenant with notice of such Default) commence and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In this Lease shall expire at the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because end of the provisions of Section 42.4Initial Term or Extended Term if the Term has been previously extended.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Office Lease (Community Bancorp Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “”Option”) to extend the Term of this Lease by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent at the commencement of each Option term shall equal ninetythe then-five percent (95%) of the current fair market value for comparable office and laboratory space in the Xxxxxx Xxxxx submarket of comparable age, quality, level of finish and proximity to amenities and public transit (“FMV”) for comparable office/research ), and development projects in the Brisbane/Peninsula market as of the date Tenant exercises the respective Option, each case shall be further increased on each annual anniversary of the Option term commencement date by three percent (3%). Tenant may, no more than fifteen (15) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of each extended term by the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such percentagerequest, if anygive Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, that constitutes a market rate annual increase for such marketnotice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) SMRH:418641422.8 61 the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant submarket, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Project. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Xxxxxx Xxxxx laboratory/research and Tenant disagree as to development leasing submarket (the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which “Baseball Arbitrator”) shall be split equally selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the local chapter of the American Arbitration Association or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the AAA shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Xxxxxx Xxxxx submarket and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding on both partiesupon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in No Option is assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine twelve (912) months prior to the end of the expiration of the then-current Term Term, but in no event earlier than fifteen (15) months prior to the expiration of the then-current Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in monetary or material, non-monetary default under any provisions SMRH:418641422.8 62 of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two defaulted in the performance of any its monetary obligations under this Lease three (23) or more times and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults monetary defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Affymetrix Inc)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease by five (5) years (each, an “Option Term”) each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend Any extension of the Term of this Lease by three (3) years each pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent during an Option Term shall equal ninety-five percent (95%) of the fair market value (“FMV”) rent for comparable office/research existing and development projects fully-improved laboratory and office space in the Brisbane/Peninsula Seattle market as of the date Tenant exercises the respective Option, increased on each annual anniversary of the commencement of each extended term by such percentageOption Term (“FMR”), if any, that constitutes a taking into account all market rate annual increase for such marketconcessions (including the FMR Considerations (as defined below)) and including fair market rent increases. In the event that If Landlord and Tenant disagree cannot agree on the FMR for an Option Term within thirty (30) days after the date on which Tenant notifies Landlord that it is exercising such Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and Tenant shall each furnish to the other a notice in writing (an “FMR Notice”) stating such party’s estimate of the FMR. Such notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Seattle area (an “Appraiser”) stating such Appraiser’s opinion of FMR. If only one (1) party’s Appraiser timely submits its opinion of FMR, such FMR shall be binding on Landlord and Tenant. If, within twenty (20) days after expiration of the Submission Period, Landlord and Tenant still cannot agree on the FMR, then the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Seattle panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMVFMR, they which opinion shall hire an appraiser reasonably acceptable be strictly limited to both partieschoosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, the and each shall pay for its own appraisal. The cost of which the Referee shall be split shared equally by Landlord and Tenant. In determining FMR, which appraiserLandlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors (the “FMR Considerations”), including (a) the size of the Premises and length of such Option Term, (b) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, brokerage commissions, tenant improvement allowances and moving allowances, (c) Tenant’s decision as to creditworthiness and (d) the FMV shall be binding on both partiesquality and location of the Building and the Project.
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall An Option is not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of this Leasethe essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option.
42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default two (2) or more times and a service or late charge has become payable under Section 24.1 for each of such Defaults during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Omeros Corp)
Options to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. Tenant shall have two (2) consecutive Options to extend the Term of this Lease by three (3) years each as to the entire Premises (and no less than the entire Premises) (each, an “Option Term”) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1. Basic Annual Base Rent shall be adjusted on the first (1st) day of an Option Term to a rate equal ninety-five percent to the greater of (95%a) of the fair market value for laboratory and office space in the Mid-Cambridge submarket of comparable age, quality, level of finish, and proximity to amenities and public transit (“FMV”) and (b) the Base Rent in effect at the expiration of the then-current Term. If Landlord and Tenant cannot agree on the FMV for comparable office/research an Option Term within thirty (30) days after the date on which Tenant notifies Landlord that it is exercising such Option, then, no later than an additional thirty (30) days thereafter (the “Submission Period”), Landlord and development projects Tenant shall each furnish to the other a notice in writing (an “FMV Notice”) stating such party’s estimate of the FMV. Such notices shall be accompanied by a statement from a qualified, licensed real estate appraiser with at least ten (10) years’ experience in the Brisbane/Peninsula market as Mid-Cambridge submarket (an “Appraiser”) stating such Appraiser’s opinion of FMV. If only one (1) party’s Appraiser timely submits its opinion of FMV, such FMV shall be binding on Landlord and Tenant. If, within twenty (20) days after expiration of the date Submission Period, Landlord and Tenant exercises still cannot agree on the respective OptionFMV, the two (2) Appraisers shall appoint a third qualified, licensed real estate appraiser (the “Referee”) within seven (7) days. If the Appraisers are unable to agree upon the selection of the Referee, then the Referee shall be selected within ten (10) days thereafter from among the Massachusetts panel of qualified Real Estate Industry Arbitrators of the American Arbitrator Association (the “Association”) pursuant to the Real Estate Industry Arbitration rules of the Association. The Referee shall, within thirty (30) days after appointment, render the Referee’s decision as to the FMV, which opinion shall be strictly limited to choosing one of the two determinations made by the Appraisers. The decision by the Referee shall be binding upon Landlord and Tenant, and each shall pay for its own appraisal. The cost of the Referee shall be shared equally by Landlord and Tenant. In determining FMV, Landlord, Tenant and, if applicable, the Appraisers and Referee shall each take into account all relevant factors, including, without limitation, (a) the size of the Premises and length of the Option Term, (b) rent in comparable buildings in the relevant competitive market, including concessions offered to new tenants, such as free rent, tenant improvement allowances, and moving allowances, (c) Tenant’s creditworthiness and (d) the quality and location of the Building and the Project. Base Rent during any Option Term shall be increased on each annual anniversary of the Option Term commencement of each extended term date by such percentage, if any, that constitutes a market rate annual increase for such market. In the event that Landlord and Tenant disagree as to the FMV, they shall hire an appraiser reasonably acceptable to both parties, the cost of which shall be split equally by Landlord and Tenant, which appraiser’s decision as to the FMV shall be binding on both partiesthree percent (3%).
42.2. Notwithstanding anything in this Lease to the contrary, Tenant shall The Options are not assign or transfer an Option, either separately or in conjunction with an assignment or transfer of Tenant’s interest in assignable separate and apart from this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. The Options are An Option is conditional upon Tenant giving Landlord written notice of its election to exercise the applicable such Option at least nine (9) months prior to the end of the expiration of the then-current Term Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Lease.
Section. 42.4. Notwithstanding anything contained in this Section 42Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of any Default as described in Section 24 Article 31 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted in the performance of its obligations under this Lease two (2) or more times times, and a service or late charge has become payable under Section 24.1 31.1 for each of such Defaults defaults, during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the an Option, whether or not Tenant cures such Defaults within any applicable cure period.
42.5. The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (BIND Therapeutics, Inc)
Options to Extend Term. Tenant shall have options (each, an “Option”) to extend the Term of this Lease upon the following terms and conditions:
42.1. 42.1 Tenant shall have two three (23) consecutive Options to extend the Term of this Lease by three (3) years each on the same terms and conditions as this Lease. Basic Annual Rent shall equal ninety-five percent (95%) of the fair market value (the “FMV”) for comparable officeprojects with customary laboratory/research and development projects interiors in the Brisbane/Peninsula market comparable locations in Fremont, California, as of the date Tenant exercises the respective Option, increased on each annual anniversary Option including market rate (as of the commencement of each extended term by such percentagetime Tenant provides notice to Landlord that Tenant is exercising an Option) rent adjustments, if any, but (a) excluding the value of any improvements made to the Premises at Tenant’s cost and expense (other than as part of a reimbursement by Tenant under this Lease (e.g., related to the First Additional TI Allowance, Second Additional TI Allowance or Third Additional TI Allowance)), and (b) taking into account any amortization to be paid by Tenant during any such extension term pursuant to Section 18.4 hereof; provided, however, that constitutes a market rate annual increase for such marketin no event shall the Basic Annual Rent at the commencement of any extension term be less than one hundred three percent (103%) of the Basic Annual Rent at the expiration of the then-current Term. In the event that Landlord and Tenant disagree as are unable to agree upon the FMVFMV for any Option term within thirty (30) days after Landlord’s receipt of the applicable Exercise Notice, they shall hire an appraiser reasonably acceptable to both parties, then the cost of which FMV shall be split equally determined as follows: a real estate appraiser who is a Member of the Appraisal Institute with local knowledge of Alameda County real estate and knowledge of the greater Bay Area laboratory/research and development leasing market (the “Baseball Arbitrator”) shall be selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, which appraiser’s decision as then the same shall be designated by the chapter of the American Arbitration Association located in or nearest to Alameda County, or any successor organization thereto (the “AAA”). The Baseball Arbitrator selected by the parties or designated by the President of the AAA shall (a) have at least ten (10) years’ experience in the leasing of office and laboratory/research and development space in Alameda County and (b) not have been employed or retained by either Landlord or Tenant or any affiliate of either. Landlord and Tenant shall each submit to the Baseball Arbitrator and to the other its determination of the FMV. The Baseball Arbitrator shall afford to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) rent determinations more closely represents the FMV of the Premises. The Baseball Arbitrator may not select any other fair market rental value for the Premises other than one submitted by Landlord or Tenant. The determination of the party so selected or designated shall be binding upon Landlord and Tenant and shall serve as the basis for the determination of the Basic Annual Rent payable for the applicable Option term. If, as of the commencement date of the applicable Option term, the amount of the Basic Annual Rent payable during the applicable Option term in accordance with this Section 42 shall not have been determined, then, pending such determination, Tenant shall pay Basic Annual Rent equal to the Basic Annual Rent payable in respect of the last year of the then-current Term. After the final determination of the Basic Annual Rent payable for such Option term, the parties promptly and appropriately shall adjust rental payments theretofore made during the applicable Option term and shall execute a written agreement specifying the amount of the Basic Annual Rent as so determined. Any failure of the parties to execute such written agreement shall not affect the validity of the Basic Annual Rent as so determined. Notwithstanding anything to the contrary contained in this Section, if the Basic Annual Rent during any Option term is determined by appraisal and if Tenant does not, in its sole discretion, approve the rental amount established by such appraisal, Tenant may rescind its exercise of the Option by giving Landlord written notice of such election to rescind within ten (10) days after receipt of all appraisals. If Tenant rescinds its exercise of the Option, then (y) the Lease shall terminate on both partiesthe thirtieth (30th) day after Tenant’s notice of rescission or on the date the Lease would have otherwise terminated absent Tenant’s exercise of the Option, whichever date is later; and (z) Tenant shall pay all costs and expenses of the appraisal.
42.2. 42.2 Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer an Option, either separately or except in conjunction with an assignment or transfer of Tenant’s interest in this Lease, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
42.3. 42.3 The Options are conditional upon Tenant giving Landlord written notice of its election to exercise the applicable Option (each, an “Exercise Notice”) at least nine twelve (912) months prior to the end of the expiration of the then-current Term of this Lease.
42.4. 42.4 Notwithstanding anything contained in this Section 42, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after an event of Default as described in Section 24 of the Lease (provided, however, that, for purposes of this Subsection 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) In the event that Tenant has committed a Default defaulted beyond applicable cure periods in the performance of its obligations under this Lease two (2) or more times and times, or a service or late charge has become payable under Section 24.1 for each of two (2) such Defaults defaults, during the twelve (12)-month period immediately prior to the date that Tenant intends to exercise the Option, whether or not Tenant cures has cured such Defaults within any applicable cure perioddefaults.
42.5. 42.5 The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. 42.6 All of Tenant’s rights under the provisions of the Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default or (c) Tenant has defaulted under this Lease three (3) or more times and a service or late charge under Section 24.1 has become payable for any such default, whether or not Tenant has cured such defaults.
Appears in 1 contract
Samples: Lease (Zosano Pharma Corp)