Right to Extend. Subject to the following, Tenant shall have the right (the “Extension Option”) to extend the Lease Term for two (2) successive periods of five (5) years each (each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than the date twelve (12) months prior to the otherwise applicable last day of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.

Appears in 2 contracts

Samples: Lease Agreement, Lease Agreement (Quanterix Corp)

Appears in 2 contracts

Samples: Lease Agreement (Conatus Pharmaceuticals Inc), Lease Agreement (Conatus Pharmaceuticals Inc)

Right to Extend. ~~Subject~~ Within sixty (60) days following Tenant’s Notice to ~~the following, Tenant shall have the right (the “Extension Option”)~~ Landlord to extend the ~~Lease~~ Initial Term ~~for two (2) successive periods of five (5) years each (each~~or if applicable, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than the date twelve (12) months prior to the otherwise applicable last day of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the First Extended Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to ~~the terms of this~~ Section ~~if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice~~ 4.05 and ~~cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~4.06 respectively, Landlord shall notify Tenant in writing of the ~~applicable~~ proposed Rent amount to be paid during the First Extended Term (the “First Extended Term Rent”), or if applicable, the proposed Rent amount to be paid during the Second Extended Term (the “Second Extended Term Rent”) which shall be equal to the then Fair Market Rental Value of the Premises. Fair Market Rental Value shall be defined as ~~determined~~ the annual rental (projected from the date of the commencement of the payment of annual rental to which it applies) which Tenant would expect to pay and Landlord would expect to receive under leases of space of comparable conditions, on conditions comparable to this Lease, covering premises comparable to the Premises in the Fairlane Business Park, Allen Park, Michigan. Tenant shall have sixty (60) days following receipt of Landlord’s notice of determination of the proposed First Extended Term Rent or, if applicable, the Second Extended Term Rent, in which to: (a) accept such determination; or (b) elect to have such determination made by appraisal as described below; or (c) withdraw its notice of exercise of option to extend. If Tenant fails to notify Landlord in writing of its election within said sixty (60) day period, Tenant shall be deemed conclusively to have withdrawn its notice of exercise of the option to extend the Lease and the Lease shall terminate on the Expiration Date of the Initial Lease Term, or, if applicable, the Expiration Date of the First Extended Term as if such notice was never given. If Tenant elects to have such determination made by appraisal, then: (i) Within ten (10) days after Landlord receives Tenant’s notice of its election to have such determination made by appraisal, Landlord and Tenant shall each appoint and employ, at its cost, a real estate appraiser (who shall be licensed in the State of Michigan and be a member of the American Institute of Real Estate Appraisers [“MAI”] with at least ten (10) years of full-time commercial appraisal and real estate marketing experience in the Dearborn area) to appraise and establish the Fair Market Rental Value. (ii) Within thirty (30) days after ~~receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination~~ the selection of the ~~Fair Market Rental Value~~two (2) appraisers, ~~notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination~~ the appraisers shall each submit an appraisal of the Fair Market Rental Value. If ~~Tenant fails~~ the appraisers are equal to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within or less than ten percent (10%) ~~business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the~~ apart in their determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value~~. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord~~, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of She two appraisals. If the ~~remaining~~ appraisers are more than ten percent (10%) apart in their determination of Fair Market Rental Value, then the two appraisers shall attempt to agree upon and designate a third appraiser meeting the qualifications set forth above within ten (210) ~~determinations~~days after the date of appointment of the last two appraisers. (iii) If the two appraisers are unable to agree on the third appraiser, either of the parties, after giving five (5) days notice to the other, shall request the American Arbitration Association in Xxxxx County, Michigan to appoint such independent third appraiser, who shall be of similar affiliation or background of the appraisers aforementioned. Each of the parties shall bear one-half of the cost of the appointment of the third appraiser and of the third appraiser’s fee. (iv) Within thirty (30) days after the selection of the third appraiser, a majority of the appraisers shall agree upon the Fair Market Rental Value. If a majority of the appraisers are unable to agree within the stipulated time, then each appraiser shall render his/her separate appraisal within such time, and the three appraisals shall be averaged in order to establish such rate; provided, however, if the low appraisal and/or the high appraisal are more than ten percent (10%) lower and/or higher than the middle appraisal, the low appraisal and/or high appraisal shall be disregarded. If both the ~~highest determination~~ low appraisal and the ~~lowest determination~~ high appraisal are ~~discarded~~disregarded, ~~then~~ the middle appraisal shall establish the Fair Market Rental Value. After the Fair Market Rental Value has been established, the appraisers shall be immediately notify the ~~remaining determination. The Fair Market Rental Value for the Premises determined~~ parties in ~~accordance with the terms hereof shall be final and binding on Landlord and Tenant~~writing.

Appears in 1 contract

Samples: Lease Agreement (Wells Real Estate Investment Trust Ii Inc)

Right to Extend. ~~Subject~~ Provided that Tenant is not in Default under any provision of this Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease to ~~the following~~an Affiliate as described in Section 9.1(e) hereof), Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased in the University Town Centre submarket of San Diego for Class A high-rise office buildings as of the commencement of the extension period (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, than the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in San Diego County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date of the Term Extension, Tenant initially~~ appraiser(s) shall ~~pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to~~ be ~~made within fourteen (14) days after the determination of Fair Market Rental Value~~shared equally by both parties. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute and return same to Landlord within 10 days. Should the Prevailing Rate not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this Section to other than an Affiliate shall be void from its inception. Tenant shall have no other right to extend the Term beyond the single 60 month extension created by this Section. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value~~a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s ~~rejection notice. If~~ Right to Extend is subject and subordinate to the expansion rights (whether such rights are designated as a ~~party fails to timely select a Qualified Broker~~right of first offer, ~~the determination~~ right of ~~the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker~~first refusal, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2expansion option or otherwise) of any ~~and all costs associated with the retention~~ tenant of the ~~third Qualified Broker~~Building existing on the date hereof. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none Time is specifically made of the ~~brokers nor their firms shall have been employed by Landlord~~ essence in this Section. IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER _____________ ISSUE DATE: ______________ ISSUING BANK: SILICON VALLEY BANK 3003 TASMAN DRIVE 2ND FLOOR, MAIL SORT HF210 XXXXX XXXXX, XXXXXXXXXX 00000 BENEFICIARY: 0000 XX XXXXX XXXXXXX LLC 000 XXXXXXX XXXXXX XXXXX XXXXXXX XXXXX, XX 00000 ATTN: SENIOR VICE PRESIDENT, OPERATIONS, OFFICE PROPERTIES APPLICANT: TRACON PHARMACEUTICALS, INC. 0000 XXXXXXXXXX XXXXXX XX, XXXXX 000 XXX XXXXX XX 00000 AMOUNT: US$175,000.00 (~~with respect to the Building~~ONE HUNDRED SEVENTY FIVE THOUSAND AND NO/100 U.S. DOLLARS) EXPIRATION DATE: _____________ (ONE YEAR FROM LC ISSUANCE WITH YEARLY AUTO- EXTENSION AS SET FORTH BELOW) LOCATION: SANTA CLARA, CALIFORNIA DEAR SIR/MADAM: WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF______ IN FAVOR OF 4350 LA JOLLA VILLAGE LLC FOR ACCOUNT OF TRACON PHARMACEUTICALS, INC. AVAILABLE BY YOUR DRAFTS DRAWN ON US AT SIGHT IN THE FORM OF EXHIBIT “A” ATTACHED AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS: 1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), ~~Tenant or their affiliates for the immediately preceding five~~ IF ANY. 2. BENEFICIARY’S DATED AND SIGNED STATEMENT, STATING AS FOLLOWS: “THE “LANDLORD” UNDER THE LEASE PURSUANT TO WHICH THIS LETTER OF CREDIT WAS ISSUED IS AUTHORIZED TO DRAW UPON THIS LETTER OF CREDIT IN THE AMOUNT OF THE ACCOMPANYING DRAFT ACCORDING TO THE TERMS OF ITS LEASE AGREEMENT WITH THE ACCOUNT PARTY AS “TENANT”.” PARTIAL DRAWS AND MULTIPLE PRESENTATIONS ARE ALLOWED. THIS ORIGINAL LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE BENEFICIARY UNLESS IT IS FULLY UTILIZED. THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST 30 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND YOU A NOTICE BY REGISTERED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS (5OR ANY OTHER ADDRESS INDICATED BY YOU, IN A WRITTEN NOTICE TO US THE RECIEPT OF WHICH WE HAVE ACKNOWLEDGED, AS THE ADDRESS TO WHICH WE SHOULD SEND SUCH NOTICE)THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND _______________ [INSERT FINAL EXPIRY DATE] WHICH IS THE FINAL EXPIRATION DATE OF THIS LETTER OF CREDIT. OF CREDIT APPLICATION, BETWEEN APPLICANT AND SILICON VALLEY BANK, THE DETAILS HEREOF SHALL PREVAIL. ________________________________________ ________________ APPLICANT’S SIGNATURE(S) ~~years~~ DATE IN THE EVENT OF SUCH NOTICE OF NON-EXTENSION, YOU MAY DRAW HEREUNDER WITH A DRAFT STATED ABOVE AND ACCOMPANIED BY THIS ORIGINAL LETTER OF CREDIT AND AMENDMENT(S), IF ANY, ALONG WITH YOUR SIGNED STATEMENT STATING THAT YOU HAVE ALL THE DETAILS SET FORTH HEREIN IN THIS LETTER OF CREDIT DRAFT ARE APPROVED BY APPLICANT. IF THERE IS ANY DISCREPANCY BETWEEN THE DETAILS OF THIS LETTER OF CREDIT DRAFT AND THE LETTER RECEIVED A NON-EXTENSION NOTICE FROM SILICON VALLEY BANK AND YOU HAVE NOT RECEIVED A REPLACEMENT LETTER OF CREDIT ACCEPTABLE TO YOU. THIS LETTER OF CREDIT IS TRANSFERABLE ONE OR MORE TIMES, BUT IN EACH INSTANCE ONLY TO A SINGLE BENEFICIARY AS TRANSFEREE AND ONLY UP TO THE THEN AVAILABLE AMOUNT, ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATION, INCLUDING BUT NOT LIMITED TO THE REGULATIONS OF THE U. S. DEPARTMENT OF TREASURY AND U. S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL AMENDMENT(S), IF ANY, MUST BE SURRENDERED TO US AT OUR ADDRESS INDICATED IN THIS LETTER OF CREDIT TOGETHER WITH OUR TRANSFER FORM ATTACHED HERETO AS EXHIBIT “B” DULY EXECUTED. THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER FORM MUST BE VERIFIED BY BENEFICIARY’S BANK. BENEFICIARY SHALL PAY OUR TRANSFER FEE OF ¼ OF 1% OF THE TRANSFER AMOUNT (~~each such broker being defined herein for purposes of this paragraph as a~~ MINIMUM US$250.00) UNDER THIS LETTER OF CREDIT. EACH TRANSFER SHALL BE EVIDENCED BY OUR ENDORSEMENT ON THE REVERSE OF THE LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL OF THE LETTER OF CREDIT SO ENDORSED TO THE TRANSFEREE. DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF CREDIT. ALL DEMANDS FOR PAYMENT SHALL BE MADE EITHER IN PERSON OR BY OVERNIGHT COURIER BY PRESENTATION OF THE ORIGINAL APPROPRIATE DOCUMENTS DURING REGULAR BUSINESS HOURS ON A BUSINESS DAY AT OUR OFFICE (THE “~~Qualified Broker~~BANK’S OFFICE”) AT: SILICON VALLEY BANK, 3003 TASMAN DRIVE, MAIL SORT HF210, XXXXX XXXXX, XXXXXXXXXX 00000, ATTENTION: GLOBAL FINANCIAL SERVICES - STANDBY LETTER OF CREDIT DEPARTMENT. WE HEREBY AGREE WITH THE BENEFICIARY THAT THE DRAFTS DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF CREDIT. IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE. THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. ~~The Fair Market Rental Value shall be the average~~ 590. (~~“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers~~BANK USE ONLY) ~~of the fair market rent determinations of the three~~ (3BANK USE ONLY) ~~brokers~~___________________________ ___________________________ AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE OF CREDIT APPLICATION, ~~unless the highest determination of the three~~ BETWEEN APPLICANT AND SILICON VALLEY BANK, THE DETAILS HEREOF SHALL PREVAIL. ________________________________________ ________________ APPLICANT’S SIGNATURE(S) DATE DATE: _______________ REF. NO. ___________________ AT SIGHT OF THIS DRAFT PAY TO THE ORDER OF US$_________________ USDOLLARS _____________________________________________________________________ _________________________________________________________________________________ DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY LETTER OF CREDIT NUMBER NO. _______________________ DATED ___________________ TO: SILICON VALLEY BANK 0000 XXXXXX XXXXX _______________________________ XXXXX XXXXX, XX 00000 (3BENEFICIARY'S NAME) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discardedALL THE DETAILS SET FORTH HEREIN IN THIS LETTER OF CREDIT DRAFT ARE APPROVED BY APPLICANT. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.IF

Appears in 1 contract

Samples: Lease Agreement (Tracon Pharmaceuticals, Inc.)

Right to Extend. ~~Subject to the following~~Provided that Tenant is not then in default under any provision of this Lease, Tenant shall have the right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Phase I Term, Phase II Term, and/or the Phase III Term for ~~two~~ one (21) ~~successive periods~~ period of ~~five~~ sixty (560) ~~years~~ months each (~~each~~collectively, an “~~Term Extension” and collectively the “Term Extensions~~Phase Extension Term”). Tenant shall exercise such rights to extend by and only by delivering to Landlord, ~~by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord~~ not ~~later~~ less than ~~the date~~ twelve (12) months or more than fourteen (14) months prior to the ~~otherwise applicable last day~~ scheduled expiration date of the ~~Lease Term (~~Phase I Term, Phase II Term, and Phase III Term, as ~~the same may have been extended for the first Term Extension)~~applicable, ~~time being~~ Tenant’s written notice of ~~the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended~~ its irrevocable election to ~~include~~ extend the applicable ~~Term Extension upon~~ Phase (the ~~same terms~~ “Exercise Notice”). It is understood that should Tenant fail timely to exercise its extension right as to any Phase, then Tenant’s rights under this Section with respect to that Phase shall lapse and ~~conditions except that (i) during the second Term Extension,~~ Tenant shall have no further ~~option~~ right to extend the ~~Term, (ii)~~ Term of that Phase or of any subsequent Phase. The Basic Rent payable under the ~~Base Rent for~~ Lease during each Phase Extension Term ~~Extension~~ shall be at the ~~greater of (a) ninety-five (95%)~~ prevailing rental rate and other economic terms for commercial space being leased in the Project and in other comparable projects in the vicinity with a term commencing at or about the commencement of the ~~Fair Market Rental Value for~~ applicable extension period (the ~~Premises~~ “Prevailing Rate”); provided that greatest weight shall be given to transaction within the Project. In determining the Prevailing Rate, consideration shall be given to recent new and renewal leases with non-equity tenants. The Prevailing Rate shall reflect the rental rate and terms payable in those third party transactions, taking into account pertinent economic concessions then generally being granted by landlords such as ~~determined in accordance with the terms hereof~~“free rent,” parking charge limitations, and the like. It is understood, however, that no consideration shall be given to brokerage commissions, lease “takeover” payments, moving allowances, or tenant improvement allowances (bother than retrofit allowances granted to renewal tenants). The rental rates payable in any third party transactions executed more than six (6) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof months prior to the commencement of the ~~Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein~~ extension period shall be ~~irrevocable~~reasonably extrapolated; if applicable, to reflect anticipated changes in the Prevailing Rate based on current rental trends. ~~If for any reason the Fair Market Rental Value has~~ Following Tenant’s delivery of each Exercise Notice, but not ~~been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent~~ later than nine (~~103%~~9) ~~of the Base Rent in effect immediately~~ months prior to the ~~commencement date~~ Expiration Date of the Phase I, Phase II, or Phase III Term, as applicable, Landlord shall notify Tenant in writing (“Landlord’s Notice”) of Landlord’s calculation of the Prevailing Rate for the applicable Phase Extension Term ~~Extension~~ based on the foregoing criteria. Should Tenant dispute Landlord’s calculation, ~~with a retroactive adjustment~~ then Tenant may, by written notice to ~~be made~~ Landlord within ~~fourteen~~ thirty (1430) days ~~after~~ following Landlord’s Notice, submit the reasonableness of Landlord’s calculation of the Prevailing Rate to arbitration in accordance with Section 22.7 of the Lease (the “Arbitration Election”). Should Tenant fail timely to make the Arbitration Election, then Landlord’s determination of ~~Fair Market Rental Value~~the Prevailing Rate shall be conclusive. ~~If Tenant exercises the Extension Option, within fifteen~~ Within twenty (1520) days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ applicable Phase Extension Term and Tenant shall execute ~~an amendment~~ and return same to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) ~~business days following delivery~~ days. Should the Prevailing Rate not be established by the commencement of ~~Tenant’s rejection notice. If~~ any Phase Extension Term, then Tenant shall continue paying rent at the rate in effect during the month preceding such commencement, and a ~~party fails to timely select a Qualified Broker,~~ lump sum adjustment shall be made promptly upon the determination of ~~the Fair Market Rental Value for the Premises~~ such new rental. The right to extend granted in this Section shall be personal to Cisco Systems, Inc., a California corporation, or any Tenant Affiliate to which this Lease may be assigned. Any other attempt to assign or transfer such right shall be void from its inception. Time is specifically made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Sublease Agreement (Palm Inc)

Right to Extend. ~~Subject to the following~~Provided that Tenant is not then in default under any provision of this Lease, Tenant may extend the Term of this Lease for one period of sixty (60) months. Tenant shall ~~have the~~ exercise such right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date~~ twelve (12) months prior to the ~~otherwise applicable last day~~ scheduled expiration date of the Term, Tenant's written notice of its irrevocable election to extend (the "Exercise Notice"). Tenant's failure timely to deliver the Exercise Notice shall cause this extension right to lapse and be of no further force or effect. The Basic Rent payable under the Lease ~~Term (as~~ during the ~~same may have been extended for the first Term Extension), time being~~ extension of the ~~essence. If each such extension is timely and properly exercised, the Lease~~ Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) at ninety-five percent (95%) of the ~~Fair Market Rental Value~~ prevailing rental rate and other economic terms for office space being leased by Landlord in the ~~Premises~~ Building and the 8105 Building with a term commencing at or about the commencement of the applicable extension period, as determined based on a reasonable extrapolation of then-current leasing rates actually achieved in ~~accordance~~ such buildings (the "Prevailing Rate"). In determining the Prevailing Rate, recent new and renewal leases with non-equity tenants of the Project shall be considered. The Prevailing Rate shall reflect the rental rate and terms ~~hereof~~payable in those third party transactions, taking into account pertinent economic concessions then generally being granted by Landlord such as "free rent," Operating Expense base years, parking charge limitations, and the like. It is understood, however, that no consideration shall be given to brokerage commissions, lease "takeover" payments, moving allowances, or tenant improvement allowances (bother than retrofit allowances granted to renewal tenants). The rental rates payable in any third party transactions executed more than six (6) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof months prior to the commencement of the ~~Extension Term or otherwise provide any amount of free rent or improvement allowance~~ extension period shall be reasonably extrapolated, if applicable, to reflect anticipated changes in ~~respect~~ the Prevailing Rate based on current rental trends. Following Tenant's delivery of the ~~Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason~~ Exercise Notice, but not later than six (6) months prior to the ~~Fair Market Rental Value has not been determined as of the commencement~~ expiration date of the ~~Term Extension~~Term, Landlord shall notify Tenant ~~initially shall pay Base Rent~~ in ~~an amount equal~~ writing ("Landlord's Notice") of Landlord's calculation of the Prevailing Rate for the extension period based on the foregoing criteria. Should Tenant dispute Landlord's calculation, then Tenant may, by written notice to ~~one hundred three percent~~ Landlord within thirty (~~103%~~30) days following Landlord's Notice, submit the reasonableness of Landlord's calculation of the Prevailing Rate to arbitration in accordance with Section 14.7(b) of the ~~Base Rent in effect immediately prior~~ Lease (the "Arbitration Election"). Should Tenant fail timely to make the ~~commencement date~~ Arbitration Election, then Landlord's determination of the ~~Term Extension , with a retroactive adjustment to~~ Prevailing Rate shall be ~~made within fourteen~~ conclusive. Within twenty (~~14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15~~20) days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute ~~an amendment~~ and return same to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord ~~shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall,~~ within fifteen (15) ~~days after receipt of Landlord’s determination~~ days. Should the Prevailing Rate not be established by the commencement of the ~~Fair Market Rental Value~~extension period, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Tenant shall continue paying rent at the rate in effect during the month preceding such commencement, and a lump sum adjustment shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, made promptly upon the determination of ~~the Fair Market Rental Value for the Premises~~ such new rental. The right to extend granted in this Section shall be personal to Quest Software, Inc., a California corporation, and any Tenant Affiliate thereof to which this Lease may be assigned. Any other attempt to assign or transfer such right shall be void from its inception. Time is specifically made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Office Space Lease (Quest Software Inc)

Appears in 1 contract

Samples: Lease (Redwood Trust Inc)

Right to Extend. ~~Subject~~ All of Tenant’s options to extend the ~~following~~Term of the Lease set forth in the Lease are hereby deleted and shall be of no further force and effect, including, without limitation, the rights set forth in Section 9 of the Third Amendment, Section 1 of the Second Amendment and the rights set forth in Section 25 of the Original Lease and, in lieu thereof, Tenant shall have the ~~right~~ extension options hereinafter provided. (a) Provided that this Lease is then in full force and effect, that Tenant is not then in default under the ~~“Extension Option”)~~ Lease, and that Tenant is then occupying all of the Premises having been leased to Tenant in the Building, Landlord hereby grants to Tenant an option to extend the ~~Lease Term~~ term of the Lease, on the same terms and conditions set forth in the Lease, for ~~two~~ one (21) ~~successive periods of~~ additional five (5) ~~years each~~ year term (~~each, an “Term Extension” and collectively~~ the “~~Term Extensions~~Option Period”). Tenant’s right to exercise an option to extend shall be conditioned upon Landlord’s receipt, no later than nine (9) months prior to the then current expiration date of the Term of Tenant’s then current certified financial statements showing a creditworthiness at least equal to the creditworthiness demonstrated to Landlord by Tenant prior to execution of the Amendment. The Option Period shall be exercised, if at all, by ~~giving Landlord~~ written notice (the “~~Renewal~~ Option Notice”) ~~irrevocably exercising such extension, which notice must be received by~~ to Landlord given not later than ~~the date twelve~~ nine (129) months prior to the ~~otherwise applicable last day~~ then current expiration date of the ~~Lease Term (as the same may have been extended for the first Term Extension)~~Term, time being of the essence. ~~If each~~ Once the Option Notice is given, Tenant’s exercise of such ~~extension is timely and properly exercised, the Lease Term~~ option shall be ~~automatically extended to include~~ irrevocable. If the ~~applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension~~Option Period hereby granted is not so exercised, Tenant shall have no further ~~option~~ right to extend the ~~Term, (ii) the~~ Term of this Lease. The Base Rent ~~for each Term Extension~~ during the Option Period shall be the greater of (ai) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect ~~immediately prior to~~ as of the ~~commencement~~ then current expiration date of the ~~Term Extension~~ Term, ~~with a retroactive adjustment~~ and (ii) the annual rate of Base Rent determined by Landlord in good faith to be ~~made within fourteen~~ the Market Rate of Base Rent (~~14) days after the determination of Fair Market Rental Value~~as hereinafter defined). ~~If Tenant exercises the Extension Option, within fifteen (15) days after the~~ Landlord’s good faith determination of the ~~Fair Market Rental Value~~ Base Rent for the ~~Premises as herein provided, the Landlord and Tenant~~ Option Period shall ~~execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder~~be conclusive. Tenant ~~shall not be entitled~~ may request in writing that Landlord provide written notice to ~~exercise its extension right pursuant to~~ Tenant of Landlord’s determination of Base Rent for the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effectOption Period. ~~In the event Tenant timely delivers its Renewal Notice as set forth above,~~ Landlord shall ~~notify~~ provide Tenant with Landlord’s determination of Base Rent for the ~~applicable Fair Market Rental Value as determined by Landlord~~ Option Period within thirty (30) days after receipt of Tenant’s ~~Renewal Notice. Tenant shall~~written request therefore, ~~within fifteen (15) days after receipt of Landlord’s~~ but in no event shall Landlord be required to provide such determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less earlier than ten (10) ~~years’ experience in appraising comparable commercial properties in such market and recognized as reputable within~~ months prior to the ~~local real estate industry, and (b) independent and none~~ then current expiration date of the ~~brokers nor their firms~~ Term. Landlord shall have ~~been employed by Landlord (with respect~~ no obligation to make improvements, decorations, repairs, alterations or additions to the ~~Building), Tenant or their affiliates~~ Premises as a condition to Tenant’s obligation to pay rent for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantOption Period.

Appears in 1 contract

Samples: Lease (OMNICELL, Inc)

Right to Extend. ~~Subject~~ Provided that Tenant is not in default under any provision of this Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a permitted transfer of this Lease to ~~the following~~a Tenant Affiliate as described in Section 9.1 hereof), Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ and parking charges payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space in the Building and Project as of the commencement of the extension period, based on a reasonable extrapolation of Landlord’s then-current leasing rates (the “Prevailing Rate”); provided that such Basic Rent shall in no event be less than the Basic Rent payable by Tenant during the final month of the Term. In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term (and for the avoidance of doubt despite such 120 day period falling outside of the three month window in which the Tenant may deliver a Commitment Notice), then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 business days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 business days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 7 years experience in the valuation of commercial office buildings in San Diego County, California. Within 10 business days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date~~ appraiser(s) shall be borne entirely by the party whose determination of the ~~Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%)~~ fair market rental rate was not accepted by the appraiser. Should the fair market rental not be established by the commencement of the ~~Base Rent~~ extension period, then Tenant shall continue paying rent at the rate in effect ~~immediately prior to~~ during the ~~commencement date~~ last month of the ~~Term Extension~~ initial Term, ~~with~~ and a ~~retroactive~~ lump sum adjustment to shall be made ~~within fourteen (14) days after~~ promptly upon the determination of ~~Fair Market Rental Value~~such new rental. ~~If Tenant exercises the Extension Option, within fifteen (15) days after~~ Promptly following receipt the determination of the ~~Fair Market Rental Value for~~ Basic Rent payable during the ~~Premises~~ extension of the Term, Landlord shall prepare an appropriate amendment to the Lease memorializing the extension of the Term in accordance with the foregoing (but otherwise upon the same terms, covenants and conditions as ~~herein provided~~set forth in this Lease except as otherwise expressly agreed upon by Landlord and Tenant), ~~the Landlord~~ and Tenant shall duly execute and return the same to Landlord within 15 days. If Tenant fails timely to do so, then Landlord, at its sole discretion, may either enforce its rights under this Section or, upon written notice to Tenant, elect to cause Tenant’s right to extend to be extinguished, in which event this Lease shall terminate as of the originally scheduled date of expiration. Should Landlord elect the latter, then this Lease shall terminate upon the scheduled date of expiration and Tenant’s rights under this paragraph shall be of no further force or effect. Any attempt to assign or transfer any right or interest created by this paragraph to other than a permitted transfer shall be void from its inception. Tenant shall have no other right to extend the Term beyond the single 60 month extension created by this paragraph. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination~~ a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. Time is specifically made of the ~~Fair Market Rental Value~~essence of this Section. ~~If Tenant rejects Landlord’s determination~~ Form Letter of ~~the Fair Market Rental Value within such fifteen~~ Credit: ………………………………………………………………………………………………………………… DATE: ISSUING BANK: CITIBANK, N.A. C/O ITS SERVICER, CITICORP NORTH AMERICA, INC. 3000 XXXXXXXX XXXXXX, XXXXXXXX X, 0XX XXXXX XXXXX, XX 00000 BENEFICIARY: THE IRVINE COMPANY, LLC 500 XXXXXXX XXXXXX XXXXX XXXXXXX XXXXX, XX 00000 ATTN: SENIOR VP, PROPERTY OPERATIONS, IRVINE OFF. PROP. APPLICANT: INTERCEPT PHARMACEUTICALS, INC. 400 X 00XX XX, XXXXX 000 XXX XXXX, XX 00000 LETTER OF CREDIT NO. GENTLEMEN: BY ORDER OF OUR CLIENT, INTERCEPT PHARMACEUTICALS, INC. (~~15) day period (time being of the essence~~THE “APPLICANT”), ~~then Landlord and Tenant shall each select a Qualified Broker~~ WE HEREBY OPEN OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. _____________, IN YOUR FAVOR FOR AN AMOUNT NOT TO EXCEED IN AGGREGATE USD874,000.00 (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the BuildingEIGHT HUNDRED SEVENTY FOUR THOUSAND AND 00/100 U.S. DOLLARS), ~~Tenant or their affiliates for the immediately preceding five~~ EFFECTIVE IMMEDIATELY AND EXPIRING AT THE OFFICE OF OUR SERVICER, CITICORP NORTH AMERICA, INC. AT 3000 XXXXXXXX XXXXXX, XXXXXXXX X, 0XX XXXXX, XXXXX, XXXXXXX 00000 ATTN. STANDBY LETTER OF CREDIT UNIT OR SUCH OTHER OFFICE AS WE MAY ADVISE YOU FROM TIME TO TIME (~~5) years (each such broker being defined herein for purposes of this paragraph as a~~ THE “~~Qualified Broker~~OFFICE”), ON APRIL 14, 2015. ~~The Fair Market Rental Value shall be the average~~ FUNDS HEREUNDER ARE AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR SIGHT DRAFT(S), DRAWN ON US, MENTIONING THEREON OUR LETTER OF CREDIT NUMBER _____________, ACCOMPANIED BY YOUR WRITTEN AND DATED STATEMENT, SIGNED BY AN AUTHORIZED OFFICER OF YOUR COMPANY, STATING THE FOLLOWING: “WE HEREBY CERTIFY THAT THE AMOUNT OF ANY DRAFT(S) DRAWN HEREUNDER REPRESENTS FUNDS DUE AND PAYABLE BECAUSE A DEFAULT HAS OCCURRED UNDER THAT CERTAIN LEASE AGREEMENT BETWEEN INTERCEPT PHARMACEUTICALS, INC. (THE "TENANT"), AND THE IRVINE COMPANY, LLC (THE "LANDLORD"), DATED ______________; WRITTEN NOTICE OF SUCH DEFAULT WAS DULY GIVEN TO THE TENANT AND ALL APPLICABLE GRACE PERIODS EXPIRED UNDER SAID LEASE." IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED, WITHOUT AMENDMENT, FOR ADDITIONAL PERIOD(S) OF ONE YEAR FROM THE EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, BUT NOT BEYOND NOVEMBER 01, 2019, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY EXPIRATION DATE WE NOTIFY YOU BY REGISTERED MAIL OR BY ANY OTHER RECEIPTED MEANS THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD, WHEREUPON YOU MAY DRAW FOR THE AVAILABLE AMOUNT UNDER THIS LETTER OF CREDIT BY MEANS OF YOUR SIGHT DRAFT(S), DRAWN ON US, MENTIONING OUR LETTER OF CREDIT NUMBER. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT IS TRANSFERABLE AND MAY BE TRANSFERRED IN ITS ENTIRETY, BUT NOT IN PART, AND MAY BE SUCCESSIVELY TRANSFERRED BY YOU OR ANY TRANSFEREE HEREUNDER TO A SUCCESSOR TRANSFEREE(S). TRANSFER UNDER THIS LETTER OF CREDIT TO SUCH TRANSFEREE SHALL BE EFFECTED UPON PRESENTATION TO US OF THE ORIGINAL OF THIS LETTER OF CREDIT AND ANY AMENDMENTS HERETO ACCOMPANIED BY A REQUEST DESIGNATING THE TRANSFEREE IN THE FORM OF EXHIBIT "A" ATTACHED HERETO APPROPRIATELY COMPLETED, ALONG WITH PAYMENT OF 1/4 OF ONE PERCENT (MINIMUM $250) AS A TRANSFER FEE. WE HEREBY AGREE TO HONOR EACH DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT IF PRESENTED, AS SPECIFIED, AT OUR OFFICE ON OR BEFORE EXPIRATION DATE. IN ADDITION, PRESENTATION OF SUCH DRAFT AND CERTIFICATE MAY ALSO BE MADE BY FAX TRANSMISSION TO FAX NO. 800-000-0000 OR SUCH OTHER FAX NUMBER IDENTIFIED BY CITIBANK, N.A. IN A WRITTEN NOTICE TO YOU. TO THE EXTENT A PRESENTATION IS MADE BY FAX TRANSMISSION, YOU MUST (I) PROVIDE TELEPHONE NOTIFICATION THEREOF TO CITIBANK, N.A. (PHONE NO. 800 000 0000) PRIOR TO OR SIMULTANEOUSLY WITH THE SENDING OF SUCH FAX TRANSMISSION AND (II) SEND THE ORIGINAL OF SUCH DRAFT AND CERTIFICATE TO CITIBANK, N.A. BY OVERNIGHT COURIER, AT THE ADDRESS PROVIDED ABOVE FOR PRESENTATION OF DOCUMENTS , PROVIDED HOWEVER, THAT CITIBANK, N.A.'S RECEIPT OF SUCH TELEPHONE NOTICE OR ORIGINAL DOCUMENTS SHALL NOT BE A CONDITION TO PAYMENT HEREUNDER. SHOULD YOU HAVE OCCASION TO COMMUNICATE WITH US REGARDING THIS LETTER OF CREDIT, PLEASE DIRECT YOUR CORRESPONDENCE TO OUR OFFICE, MAKING SPECIFIC MENTION OF THE LETTER OF CREDIT NUMBER INDICATED ABOVE. FOR INQUIRIES YOU MAY CONTACT US AT 1-000-000-0000 OR VIA SWIFT CXXXXX00. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. CITIGROUP ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS EXCEPT AS FAR AS OTHERWISE EXPRESSLY STATED HEREIN, THIS STANDBY LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (“~~average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers~~ISP98”), ~~unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination~~INTERNATIONAL CHAMBER OF COMMERCE, ~~in which case it shall be discarded~~PUBLICATION NO. 590, ~~or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination~~AND AS TO MATTERS NOT GOVERNED BY THE ISP98, ~~in which case it shall be discarded~~SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. ~~If one determination is discarded~~Re: L/C No. ______________________ Citibank, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.N.A. Ref: ______________________

Appears in 1 contract

Samples: Office Space Lease (Intercept Pharmaceuticals Inc)

Right to Extend. ~~Subject to the following,~~ Tenant shall have the ~~right (the “Extension Option”)~~ option to extend the initial term of this Lease ~~Term~~ and the Expiration Date for ~~two (2) successive periods~~ the Premises, as the Premises may have been expanded by written agreement, for an additional period of five (5) years ~~each~~ from the expiration of the initial Term (~~each, an “Term Extension”~~ said option being herein referred to as the "First Extension Option" and ~~collectively~~ said five year period being herein referred to as the ~~“Term Extensions”~~"First Extension Period"), ~~by giving~~ and for a second consecutive period of five (5) years from the expiration of the First Extension Period (said option being hereinafter referred to as the "Second Extension Option" and said five year period being herein referred to as the "Second Extension Period"), on the terms and conditions set forth below: (a) Tenant must give Landlord written notice (of its exercise of the ~~“Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than the date twelve (12) months~~ First Extension Option on or before one year prior to the ~~otherwise applicable last day~~ expiration of the initial Term, and of the Second Extension Option on or before one year prior to the expiration of the First Extension Period. If Tenant fails to exercise either Extension Option prior to the applicable date, Tenant's right to so extend this Lease ~~Term~~ and such Extension Option (and all then remaining Extension Options) shall thereafter be null and void and of no further force or effect. (b) In the event that an Event of Default shall exist as of the ~~same~~ time of exercise of any Extension Option or as of the date of the commencement of any Extension Period, the Extension Option and Tenant's right to extend this Lease shall be rendered null and void and of no further force or effect. (c) The terms and conditions of this Lease, as it may have been ~~extended~~ amended from time to time, shall prevail during the term of the applicable Extension Period except that Base Rental for the ~~first Term Extension), time being~~ Premises (including all space which has become a part of the ~~essence~~Premises) shall be adjusted at the commencement of the applicable Extension Period to the then "Prevailing Market Rate" (as hereinafter defined). ~~If each such extension is timely~~ The "Prevailing Market Rate" shall be determined by Landlord and ~~properly exercised~~Tenant by mutual agreement, and, if Landlord and Tenant cannot agree, the ~~Lease Term~~ Prevailing Market Rate shall be ~~automatically extended to include~~ established in the manner specified in the balance of this subparagraph. Unless Landlord and Tenant have agreed upon the Prevailing Market Rate for the applicable ~~Term~~ Extension ~~upon~~ Period within thirty (30) days after the ~~same terms and conditions except that~~ receipt of Tenant's exercise of the Extension Option, Landlord shall advise Tenant of its determination of what the Prevailing Market Rate, per square foot of Rentable Area, should be for such Extension Period (i"Landlord's Final Rate"). Within twenty (20) ~~during the second Term Extension~~days after receipt of Landlord's Final Rate, Tenant shall ~~have no further option~~ advise Landlord, in writing, as to ~~extend the Term, (ii) the Base Rent for each Term Extension~~ whether or not Tenant accepts or rejects Landlord's Final Rate. Failure to accept or reject within said twenty day period shall be deemed acceptance thereof. If Tenant rejects Landlord's Final Rate, Tenant shall specify in such rejection notice Tenant's determination of what the ~~greater~~ Prevailing Market Rate, per square foot of Rentable Area, should be for such Extension Period (a"Tenant's Final Rate"), and the Prevailing Market Rate, applying the definition in subparagraph (d) ~~ninety-five (95%) of the Fair Market Rental Value~~ below, for the ~~Premises as~~ Extension Period shall then be determined by arbitration in accordance with the ~~terms hereof, and (b)~~ provisions of Paragraph 2 below. If the ~~Base Rent then in effect immediately prior to~~ arbitrator has not determined the ~~extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof~~ Prevailing Market Rate prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term ExtensionPeriod, Tenant ~~initially~~ shall continue to pay ~~Base Rent in an amount equal to one hundred three percent (103%) of~~ the Base ~~Rent~~ Rental rates in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment pursuant to this Lease ~~confirming same, provided that~~ for the ~~failure of either party to do so shall not affect the rights and obligations~~ last month of the ~~parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if~~then expiring term and, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days ~~after receipt of Tenant’s Renewal Notice. Tenant shall~~following the arbitrator's decision, ~~within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts~~ any overpayment or ~~rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within~~ underpayment based on such ~~fifteen (15) day period (time being of the essence), Tenant~~ previous rates shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected paid by Tenant ~~and~~ or Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the ~~Building)~~other, ~~Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph~~ as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenantappropriate.

Appears in 1 contract

Samples: Lease Agreement (Interland Inc /Mn/)

Appears in 1 contract

Samples: Lease Agreement (TuSimple Holdings Inc.)

Right to Extend. ~~Subject to~~ Provided that Tenant is not in Default under any provision of this Lease at the ~~following~~time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease as described in Section 9.2 hereof), Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Xxxxxx’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased by Landlord in the Project or other comparable projects owned by Landlord in the Irvine Spectrum area as of the commencement of the extension period, based on a reasonable extrapolation of Landlord’s then-current leasing rates (the “Prevailing Rate”); provided that such Basic Rent shall in no event be less than the Basic Rent payable by Xxxxxx during the final month of the Term. In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, than the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years’ experience in the valuation of commercial office buildings in Orange County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date of the Term Extension, Tenant initially~~ appraiser(s) shall ~~pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to~~ be ~~made within fourteen (14) days after the determination of Fair Market Rental Value~~shared equally by both parties. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute ~~an amendment~~ and return same to ~~this Lease confirming same, provided that~~ Landlord within 10 days. Should the ~~failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall~~ Prevailing Rate not be ~~entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at~~ established by the commencement of the ~~Term Extension~~extension period, ~~(i)~~ then Tenant is shall continue paying rent at the rate in ~~default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In~~ effect during the ~~event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ last month of the ~~applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall~~initial Term, ~~within fifteen (15) days after receipt of Landlord’s~~ and a lump sum adjustment shall be made promptly upon the determination of ~~the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value~~such new rental. If Tenant fails to ~~notify Landlord that it rejects~~ timely comply with any of the provisions of this paragraph, Xxxxxx’s right to extend the Term may, at Landlord’s ~~determination~~ election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the ~~Fair Market Rental Value within such fifteen (15) day period (time being~~ initial expiration date of the ~~essence),~~ Term. Any attempt to assign or transfer any right or interest created by this Section to other than in connection with a Permitted Transfer shall be void from its inception. Tenant shall ~~be deemed~~ have no other right to ~~have irrevocably accepted Landlord’s determination of~~ extend the ~~Fair Market Rental Value~~Term beyond the single 60-month extension created by this Section. ~~If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select~~ Unless agreed to in a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers writing signed by Landlord and Tenant~~. Within ten (10) business days after the third Qualified Broker has been selected~~, ~~all~~ any extension of the ~~Qualified Brokers shall meet~~ Term, whether created by an amendment to ~~attempt to agree upon~~ the ~~Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration~~ Lease or by a holdover of the ~~preceding ten (10) business day period~~Premises by Tenant, ~~arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord~~ or otherwise, shall be ~~responsible for~~ deemed a part of, and not in addition to, any ~~and all costs associated with the retention~~ duly exercised extension period permitted by this paragraph. Time is specifically made of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to essence in this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (Capstone Dental Pubco, Inc.)

Right to Extend. ~~Subject to~~ Provided that Tenant is not in default under any --------------- provision of the ~~following~~Lease, either at the time of exercise of the extension right granted herein or at the time of the commencement of such extension, and provided further that Tenant has not assigned its interest in the Lease, Tenant may extend the Term of the Lease for one (1) period of sixty (60) months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for~~ by and only by (i) delivering to Landlord, not less than one hundred eighty (180) days or more than two hundred forty (2240) successive periods of five (5) years each (each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than the date twelve (12) months days prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant's written notice of its commitment to extend (the "Commitment Notice") and (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior returning to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension OptionLandlord, within fifteen (15) days after ~~the determination of the Fair Market Rental Value for the Premises as herein provided~~receipt, ~~the Landlord and Tenant shall execute~~ an executed amendment to this Lease ~~confirming same, provided that the failure of either party~~ (to ~~do so shall not affect the rights and obligations~~ be prepared by Landlord upon receipt of the ~~parties hereunder~~Commitment Notice) setting forth the Basic Rent and other charges payable during the extension term. ~~Tenant~~ The Basic Rent payable under the Lease during any extension of the Term shall ~~not~~ be ~~entitled to exercise its extension right pursuant to the terms of this Section if,~~ at the ~~time~~ rate Landlord is then receiving for recent leases of ~~exercise or~~ comparable and similarly improved space within the Project on the date of the Commitment Notice, as reasonably determined by Landlord. In no event shall the Basic Rent payable at the commencement of any extension period be less than the ~~Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In~~ Basic Rent payable during the ~~event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ month immediately preceding the commencement of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Valuesuch extension period. If Tenant fails to ~~notify Landlord that it rejects Landlord’s determination~~ timely comply with any of the ~~Fair Market Rental Value within such fifteen (15) day period (time being~~ provisions of this paragraph, Tenant's right to extend the Term shall be extinguished and the Lease shall automatically terminate as of the ~~essence)~~expiration date of the Term, without any extension and without any liability to Landlord. Any attempt to assign or transfer any right or interest created by this paragraph shall be void from its inception. Tenant shall ~~be deemed~~ have no other right to ~~have irrevocably accepted Landlord’s determination of~~ extend the ~~Fair Market Rental Value~~Term beyond the single sixty (60) month extension created by this paragraph. ~~If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select~~ Unless agreed to in a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers writing signed by Landlord and Tenant~~. Within ten (10) business days after the third Qualified Broker has been selected~~, ~~all~~ any extension of the ~~Qualified Brokers shall meet~~ Term, whether created by an amendment to ~~attempt to agree upon~~ the ~~Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration~~ Lease or by a holdover of the ~~preceding ten (10) business day period~~Premises by Tenant, ~~arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord~~ or otherwise, shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) deemed a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industrypart of, and ~~(b) independent and none of the brokers nor their firms shall have been employed~~ not in addition to, any duly exercised extension period permitted by ~~Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of~~ this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenantparagraph.

Appears in 1 contract

Samples: Lease (United Panam Financial Corp)

Right to Extend. ~~Subject to the following,~~ Provided that Tenant shall have the right (the “Extension Option”) to extend the Lease Term for two (2) successive periods of five (5) years each (each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord is not later than the date twelve (12) months prior to the otherwise applicable last day of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in ~~accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term~~ Default under any provision of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise of the extension right granted herein, and provided further that Tenant has not assigned any of its interest in this Lease or at sublet more than fifty percent (50%) of the ~~commencement~~ Floor Area of the Premises (in the aggregate), except in connection with a Permitted Transfer of this Lease to an Affiliate as described in Section 9.2 hereof, Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall exercise its right to extend the Term by and only by delivering to Landlord, not less than 9 months nor more than 12 months prior to the expiration date of the Term, Tenant’s written notice of its irrevocable commitment to extend (the “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent payable under the Lease during the extension of the Term ~~Extension,~~ shall be at the prevailing market rental rate (iincluding periodic adjustments) ~~Tenant is~~ for comparable and similarly improved office space in ~~default beyond any applicable notice and cure period provided in this Lease, or~~ the Santa Xxxxx submarket (~~ii) this Lease is not in full force and effect~~the “Prevailing Rate”). In the event ~~Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the ~~applicable Fair Market Rental Value as~~ Term, then either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by ~~Landlord within thirty (30)~~ appraisal as follows. Within 10 days ~~after~~ following receipt of ~~Tenant’s Renewal Notice. Tenant shall~~such appraisal election, ~~within fifteen (15) days after receipt of Landlord’s determination of~~ the ~~Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of~~ parties shall attempt to agree on an appraiser to determine the ~~Fair Market Rental Value~~Prevailing Rate. If ~~Tenant fails~~ the parties are unable to ~~notify Landlord~~ agree in that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence)time, then ~~Landlord and Tenant~~ each party shall ~~each select a Qualified Broker (as defined below)~~ designate an appraiser within ~~ten (10) business~~ 10 days ~~following delivery of Tenant’s rejection notice~~thereafter. ~~If a~~ Should either party ~~fails~~ fail to ~~timely select a Qualified Broker~~so designate an appraiser within that time, then the ~~determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected~~ appraiser designated by the other ~~party~~party shall determine the Prevailing Rate. If Should each ~~party selects a Qualified Broker~~of the parties timely designate an appraiser, than the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.appraisers so designated DocuSign Envelope ID: 7CCC5BBD-E005-4A99-BDC3-12BBFCE51E1A

Appears in 1 contract

Samples: Lease Agreement (eHealth, Inc.)

Right to Extend. ~~Subject~~ Landlord grants Tenant the option to extend this Lease with respect to the ~~following, Tenant shall have the right~~ entire Premises for one (~~the “Extension Option”~~1) ~~to extend the Lease Term for two (2) successive periods~~ additional period of five (5) ~~years~~ Lease Years (the "Extension Period") subject to each and all of the following terms and conditions (~~each~~the "Extension Option"): (a) The Extension Option may not be exercised or assigned, ~~an “Term Extension”~~ voluntarily or involuntarily, by or to any person or entity other than the Tenant named in this Lease, and ~~collectively~~ the ~~“Term Extensions”~~parties hereto agree that if Tenant assigns any of its interest in this Lease or subleases the Premises (or any portion thereof), this Extension Option shall terminate immediately without the need for any act or notice by ~~giving~~ either party to be effective. (b) The Annual Base Rent for the Extension Period shall be equal to the greater of: (i) the Annual Base Rent payable during the final Lease Year of the original Term, or (ii) 95% of the then prevailing fair market rental rate (such prevailing fair market rental rate, the "Market Rent") for Tenant's space; during the Extension Period the Additional Rent shall continue to be payable in the amount and manner as provided in the Lease with the same Base Taxes and Base Expense Year as established in Section 5.01 and all of the terms, conditions and covenants of this Lease shall apply. (c) Tenant shall have delivered to Landlord written notice (the ~~“Renewal~~ "Extension Notice”") ~~irrevocably exercising such extension, which notice must be received by Landlord~~ of the exercise of the Extension Option not later than ~~the date twelve (12) months~~ 270 days prior to the ~~otherwise applicable last day~~ expiration of the ~~Lease Term (as the same may have been extended for the first Term Extension)~~current term of this Lease, time being of the essence. If ~~each such extension~~ an Extension Notice is ~~timely and properly exercised~~not so delivered, Tenant's Extension Option shall automatically expire. (d) Tenant's right to exercise the ~~Lease Term~~ Extension Option shall be ~~automatically extended to include~~ suspended at the ~~applicable Term Extension upon~~ election of Landlord during any period in which an Event of Default has occurred and is continuing, but the ~~same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater~~ period of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of time within which the Extension ~~Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises~~Option may be exercised shall not be extended. ~~Any~~ Notwithstanding Tenant's due and timely exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, ~~within fifteen (15) days~~ if, after such exercise and prior to the ~~determination~~ effective date of the ~~Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute~~ Extension Option an ~~amendment to~~ Event of Default occurs under this Lease ~~confirming same~~that is not cured within the applicable grace period, ~~provided that~~ if any, Landlord shall have the ~~failure of either party~~ right to ~~do so shall not affect the rights and obligations~~ cancel Tenant's exercise of the ~~parties hereunder. Tenant shall not be entitled~~ Extension Option by delivery of written notice to Tenant. (e) Tenant's right to exercise its ~~extension right pursuant~~ Extension Option is subject and subordinate to the ~~terms~~ exercise of ~~this Section if~~all rights of first offer, at first refusal, expansion, lease renewal and lease extension rights (the ~~time of exercise or at~~ "Expansion Rights") with regard to the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined Premises that have been granted by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord Old Danbury Road Lessee Corp. and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect Building tenants prior to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantCommencement Date.

Appears in 1 contract

Samples: Lease Agreement (Startech Environmental Corp)

Appears in 1 contract

Samples: Lease Agreement (AVITA Medical, Inc.)

Right to Extend. Subject to the ~~following~~terms of this Section, ~~Tenant~~ and provided Sublessee has not elected to terminate this Sublease pursuant to Section 41 hereof, Sublessee shall have ~~the right~~ one (~~the “Extension Option”~~1) option to extend the ~~Lease~~ Term of this Sublease with respect to the entirety of the Subleased Premises, for ~~two (2) successive periods~~ an additional period of five (5) years ~~each~~ from the expiration date of the Sublease Term (~~each, an~~ “~~Term Extension” and collectively the “Term Extensions~~Extension Period”). (i) The option to extend shall be exercised, if at all, by ~~giving Landlord written~~ notice ~~(the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than~~ of exercise given to Sublessor on or before the date which is twelve (12) months prior to the ~~otherwise applicable last day~~ expiration of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the initial Sublease Term, . (ii) Anything herein to the ~~Base Rent for each Term Extension shall be~~ contrary notwithstanding, if Sublessee is in default (after the ~~greater~~ lapse of (aany applicable notice and cure period) ~~ninety-five (95%)~~ under any of the ~~Fair Market Rental Value for~~ terms, covenants or conditions of this Sublease, either at the ~~Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ time Sublessee exercises the extension ~~of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish~~ option or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the ~~Term Extension~~Extension Period, ~~Tenant initially~~ Sublessor shall ~~pay Base Rent~~ have, in ~~an amount equal~~ addition to ~~one hundred three percent~~ all of Sublessor’s other rights and remedies provided in this Sublease, the right to terminate such option to extend upon notice to Sublessee. (~~103%~~iii) If the extension option is exercised in a timely fashion, this Sublease shall be extended for the Extension Period upon all of the ~~Base Rent in effect immediately prior~~ terms and conditions of this Sublease (except as provided below with respect to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming sameapplicable lease concessions), provided that the ~~failure of either party to do so~~ Base Monthly Rent for the Extension Period shall ~~not affect~~ be the ~~rights and obligations of~~ “Fair Market Rent” for the ~~parties hereunder~~Subleased Premises. ~~Tenant~~ For purposes hereof, “Fair Market Rent” shall ~~not be entitled to exercise its extension right~~ mean the Base Monthly Rent determined pursuant to the ~~terms~~ process described below. At the end of the first 12-month period of the Extension Period, Base Monthly Rent shall be cumulatively increased to reflect 3% annual increases. Base Monthly Rent shall be so adjusted at the end of each subsequent 12-month period during the Extension Period. No leasing commissions shall be due or payable to any broker retained by Sublessee with regard to this Sublease for the Extension Period. For purposes hereof, “Fair Market Rent”, for the purposes of this ~~Section if~~Sublease, shall mean the annual amount per rentable square foot that a willing, comparable, new non-renewal non-equity sublessee would pay, and a willing, comparable sublessor of a comparable building within the El Segundo would accept, at arm’s length, giving appropriate consideration to the ~~time~~ annual rental rate per rentable square foot, escalation (including type, base year and stop) and abatement provisions reflecting free rent and/or no rent during the period of ~~exercise or at the commencement~~ construction, brokerage commissions, if any, length of the ~~Term Extension~~lease term, ~~(i) Tenant is in default beyond~~ size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and other generally applicable conditions of tenancy for a whole-building sublessee so that this Sublessee will obtain the same rent and other benefits that Sublessor would otherwise give to any ~~applicable notice and cure period provided in this Lease~~comparable prospective sublessee. In order to provide “equivalent” economics, Sublessor shall have the choice of either providing the market concessions described above to Sublessee, or ~~(ii) this Lease is not in full force and effect. In~~ subtracting the ~~event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ value of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of concessions from the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select Rent on a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenantstraight-line basis.

Appears in 1 contract

Samples: Sublease (Griffin Realty Trust, Inc.)

Appears in 1 contract

Samples: Lease (Zafgen, Inc.)

Right to Extend. ~~Subject~~ Provided that Tenant is not in monetary default beyond any applicable notice (actually provided and properly received by Tenant) and cure period under any provision of this Lease at the time of exercise of the extension right granted herein, and provided further that Tenant has not assigned or sublet more than forty (40%) of the Premises (except in connection with an assignment of this Lease to ~~the following~~a Tenant Affiliate as described in Section 9.1(f) hereof), Tenant ~~shall have the right (the “Extension Option”) to~~ may extend the Term of this Lease ~~Term~~ for two (2) ~~successive~~ consecutive periods of ~~five~~ sixty (560) ~~years each~~ months each. Tenant shall exercise its right to extend the Term by and only by delivering to Landlord, not less than nine (~~each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”~~9) ~~irrevocably exercising such extension, which notice must be received by Landlord not later~~ months nor more than ~~the date~~ twelve (12) months prior to the ~~otherwise applicable last day~~ expiration date of the ~~Lease Term~~ then applicable Term, Tenant’s written notice of its intent to extend (as the ~~same may have been extended for~~ “Exercise Notice”). Should Tenant fail timely to deliver the ~~first Term Extension)~~Exercise Notice, ~~time being~~ then this extension right (and any future extension right granted herein) shall thereupon lapse and be of ~~the essence~~no further force or effect. ~~If each such extension is timely and properly exercised,~~ The Basic Rent payable under the Lease ~~Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i)~~ during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the ~~then current~~ Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be ~~irrevocable~~at the fair market rental (the “Prevailing Rate”), including periodic adjustments, for comparable space with similar floor location and comparable views and similarly improved office space being leased within the UTC submarket “Comparable Buildings” (as defined below). If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within Within fifteen (15) days ~~after the determination~~ following Tenant’s delivery of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable ~~notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~Exercise Notice, Landlord shall notify Tenant ~~of the applicable Fair Market Rental Value as determined by Landlord within thirty~~ in writing (30“Landlord’s Notice”) ~~days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt~~ of Landlord’s ~~determination~~ calculation of the ~~Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of~~ Prevailing Rate for the ~~Fair Market Rental Value~~current extension period. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within Within ten (10) business days following delivery of Landlord’s Notice, Tenant may, by written notice to Landlord (“Tenant’s ~~rejection notice. If a party fails~~ Notice”) elect either to ~~timely select a Qualified Broker~~(a) rescind the Exercise Notice in which event this extension right shall permanently lapse, ~~the~~ (b) accept Landlord’s determination of the ~~Fair Market Rental Value~~ Prevailing Rate, or (c) require that the rental rate for the Premises for the extension term be determined by appraisal. In the event that Tenant’s Notice provides either that Tenant accepts Landlord’s calculation of the Prevailing Rate or that the rental rate for the extension period be determined by appraisal, Tenant shall be ~~made by~~ deemed to have irrevocably elected to extend the ~~Qualified Broker selected~~ term of this Lease pursuant to this extension right. Should Tenant fail to timely deliver the Tenant’s Notice, then Landlord shall provide an additional notice to Tenant indicating that Landlord has not received a response to Landlord’s Notice and that if a response is not received from Tenant within fifteen (15) days from the date of Landlord’s additional notice, then Landlord’s determination of the Prevailing Rate shall be conclusive and Tenant’s Exercise Notice shall be irrevocable. Within twenty (20) days following receipt of such appraisal election, the parties shall attempt to agree on an appraiser to determine the fair market rental. If the parties are unable to agree in that time, then each party shall designate an appraiser within twenty (20) days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other ~~party~~party shall determine the fair rental value. If Should each ~~party selects a Qualified Broker~~of the parties timely designate an appraiser, then the two ~~(2) Qualified Brokers selected by Landlord and Tenant~~ appraisers so designated shall ~~select~~ appoint a third ~~Qualified Broker by mutual agreement reached within~~ appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have an M.A.I. certification or equivalent with not less than five (5) ~~business days after selection~~ years experience in the valuation of ~~the first two (2) Qualified Brokers by Landlord and Tenant~~commercial office buildings in San Diego County, California. Within ten (10) ~~business~~ days ~~after~~ following the ~~third Qualified Broker has been selected, all~~ selection of the ~~Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement~~appraiser, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each ~~be responsible for one half (1/2) of any and all costs associated with~~ submit in writing to the ~~retention~~ appraiser its determination of the ~~third Qualified Broker~~rental rate for the current extension period (respectively, the “Landlord’s Determination” and the “Tenant’s Determination”). ~~All brokers selected pursuant~~ Should either party fail timely to ~~this section~~ submit its rental determination, then the determination of the other party shall be ~~(a) a commercial real estate broker licensed in Massachusetts, specializing in~~ conclusive and binding on the ~~leasing~~ parties. The appraiser shall not disclose to either party the rental determination of ~~laboratory space in~~ the ~~Bedford, Billerica and Burlington, Massachusetts submarket, with not less than~~ other party until the expiration of that ten (10) ~~years’ experience~~ day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within thirty (30) days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or by Tenant more accurately reflects the fair market rental rate for the Premises, as reasonably extrapolated to the commencement of the current extension term. Accordingly, either the Landlord’s Determination or the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall consider rental comparables for new and renewal transactions in ~~appraising comparable commercial properties~~ the Building and the Comparable Buildings involving similarly improved space, with appropriate adjustments for differences in ~~such market and recognized as reputable~~ location, floor height within the ~~local real estate industry,~~ Building and ~~(b) independent~~ views from the Premises and ~~none~~ quality of project and quality of the ~~brokers nor their firms~~ Premises. In no event shall ~~have been employed by Landlord (with respect to~~ the ~~Building), Tenant or their affiliates for~~ appraiser lower the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum determination of the fair market ~~rent determinations divided~~ rental rate to reflect brokerage commissions or moving allowances that do not actually reduce the rental sums paid by a tenant. At any time before the decision of the appraiser is rendered, either party may, by written notice to the other party, accept the rental terms submitted by the ~~number~~ other party, in which event such terms shall be deemed adopted as the agreed fair market rental. The fees of ~~brokers~~the appraiser(s) shall be borne entirely by the party whose determination of the fair market ~~rent determinations~~ rental rate was not accepted by the appraiser. Within twenty (20) days of either party’s acceptance of the ~~three (3) brokers, unless~~ other party’s rental terms or the ~~highest~~ determination of the ~~three~~ fair market rental by appraisal, Landlord shall prepare a reasonably appropriate amendment to this Lease for the extension period and Tenant shall execute and return same to Landlord within twenty (320) ~~brokers is greater than 10% higher than~~ days. Should the ~~next highest determination~~fair market rental not be established by the commencement of the current extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which ~~case it~~ event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this paragraph to other than a Tenant Affiliate shall be ~~discarded, or unless~~ void from its inception. Tenant shall have no other right to extend the ~~lowest of~~ Term beyond the ~~three~~ two consecutive sixty (360) ~~determinations is greater than 10% lower than the next lowest determination,~~ month extensions created by this paragraph. Unless agreed to in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease or by a holdover of the Premises by Tenant, or otherwise, shall be deemed a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. Time is specifically made of the essence in this Section.

Appears in 1 contract

Samples: Office Lease Agreement (BofI Holding, Inc.)

Right to Extend. ~~Subject to~~ Provided that Tenant is not in Default under any provision of this Lease at the ~~following~~time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease as described in Section 9.1(e) hereof), Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased in the City of Sunnyvale as of the commencement of the extension period, (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, than the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in Santa Xxxxx County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date of the Term Extension, Tenant initially~~ appraiser(s) shall ~~pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to~~ be ~~made within fourteen (14) days after the determination of Fair Market Rental Value~~shared equally by both parties. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute and return same to Landlord within 10 days. Should the Prevailing Rate not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this Section, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this Section to other than in connection with a Permitted Transfer shall be void from its inception. Tenant shall have no other right to extend the Term beyond the single 60 month extension created by this Section. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination~~ a part of, and not in addition to, any duly exercised extension period permitted by this Section. Time is specifically made of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (Proofpoint Inc)

Right to Extend. ~~Subject~~ Provided that Tenant is not in Default under any provision of this Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying at least 60% of the Building (or in the event Tenant leases one or more of the First Right Spaces Tenant shall occupy at least 75% of the then total rentable square feet of the Premises) and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease to ~~the following~~an Affiliate as described in Section 9.1(e) hereof), Tenant may extend the Term of this Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased by Landlord in the Project as of the commencement of the extension period, based on a reasonable extrapolation of Landlord’s then-current leasing rates (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 business days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 business days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in San Diego County, California. Within 10 business days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 business day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space shown on Exhibit Y with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental (it being understood, however, that if a proposed third party tenant transaction for the Premises would require the payment of a brokerage commission by Landlord and if Tenant is then being actively represented by a broker, Landlord shall pay a comparable commission to Tenant’s broker). At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date~~ appraiser(s) shall be borne entirely by the party whose determination of the ~~Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of~~ fair market rental rate was not accepted by the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Valueappraiser. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ fair market rental, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute and return same to Landlord within 10 days. Should the fair market rental not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this paragraph to other than an Affiliate shall be void from its inception. Tenant shall have no other right to extend the Term beyond the single 60 month extension created by this paragraph. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination~~ a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. Time is specifically made of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (SERVICE-NOW.COM)

Right to Extend. ~~Subject~~ Provided that Tenant is not in default under any provision of the Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying at least 80% of the entire Premises and has not assigned or sublet more than 20% of its interest in the Lease (except in connection with a Permitted Transfer of the Lease to a Tenant Affiliate as described in Section 9.1(f) of the ~~following~~Lease), Tenant may extend the Term of the Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 6 months nor more than 9 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments, a new base year, Tenant Improvements and other market concessions, if applicable) for comparable and similarly improved office space being leased by Landlord in the Building as of the commencement of the extension period, based on a reasonable extrapolation of Landlord’s then-current leasing rates (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in San Diego County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date~~ appraiser(s) shall be borne entirely by the party whose determination of the ~~Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of~~ fair market rental rate was not accepted by the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Valueappraiser. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ fair market rental, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute ~~an amendment~~ and return same to ~~this Lease confirming same, provided that~~ Landlord within 10 days. Should the ~~failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall~~ fair market rental not be ~~entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at~~ established by the commencement of the ~~Term Extension~~extension period, ~~(i)~~ then Tenant is shall continue paying rent at the rate in ~~default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In~~ effect during the ~~event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ last month of the ~~applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall~~Term, ~~within fifteen (15) days after receipt of Landlord’s~~ and a lump sum adjustment shall be made promptly upon the determination of ~~the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value~~such new rental. If Tenant fails to ~~notify Landlord that it rejects~~ timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s ~~determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall~~ election and in addition to any other remedies that may be ~~deemed~~ available to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, ~~Tenant shall~~ be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determinationextinguished, in which ~~case it~~ event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this paragraph to other than a Tenant Affiliate shall be ~~discarded, or unless~~ void from its inception. Tenant shall have no other right to extend the ~~lowest~~ Term beyond the single 60 month extension created by this paragraph. Time is specifically made of the ~~three (3) determinations is greater than 10% lower than the next lowest determination,~~ essence in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenantthis Section.

Appears in 1 contract

Samples: Lease (Infosonics Corp)

Right to Extend. ~~Subject~~ All of Tenant’s options to extend the ~~following~~Term of the Lease set forth in the Lease are hereby deleted and shall be of no further force and effect, including, without limitation, the rights set forth in Section 1 of the Second Amendment and the rights set forth in Section 25 of the Original Lease and, in lieu thereof, Tenant shall have the ~~right~~ extension options hereinafter provided. (a) Provided that this Lease is then in full force and effect, that Tenant is not then in default under the ~~“Extension Option”)~~ Lease, and that Tenant is then occupying all of the Premises having been leased to the Tenant in the Building, Landlord hereby grants to Tenant an option to extend the ~~Lease Term~~ term of the Lease, on the same terms and conditions set forth in the Lease, except that Tenant shall have no right to exercise the second option if it has not exercised the first option and after the second option shall have no further right to extend, for two (2) ~~successive periods of~~ additional consecutive five (5) ~~years each~~ year terms (each, an “~~Term Extension” and collectively the “Term Extensions~~Option Period”). Tenant’s right to exercise an option to extend shall be conditioned upon Landlord’s receipt, ~~by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not~~ no later than ~~the date twelve~~ nine (129) months prior to the ~~otherwise applicable last day~~ then current expiration date of the ~~Lease~~ Term of Tenant’s then current certified financial statements showing a creditworthiness at least equal to the creditworthiness demonstrated to Landlord by Tenant prior to execution of the Amendment. Each such option to extend shall be exercised, if at all, by written notice (as “Option Notice”) to Landlord given not later than nine (9) months prior to the ~~same may have been extended for~~ then current expiration date of the ~~first Term Extension)~~Term, time being of the essence. ~~If each~~ Once an Option Notice is given, Tenant’s exercise of such ~~extension is timely and properly exercised, the Lease Term~~ option shall be ~~automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension~~irrevocable. If an option hereby granted is not so exercised, Tenant shall have no further ~~option~~ right to extend the ~~Term, (ii) the~~ Term of this Lease. The Base Rent ~~for each Term Extension~~ during the applicable Option Period shall be the greater of (ai) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect ~~immediately prior to~~ as of the ~~commencement~~ then current expiration date of the ~~Term Extension~~ Term, ~~with a retroactive adjustment~~ and (ii) the annual rate of Base Rent determined by Landlord in good faith to be ~~made within fourteen~~ the Market Rate of Base Rent (~~14) days after the determination of Fair Market Rental Value~~as hereinafter defined). ~~If Tenant exercises the Extension Option, within fifteen (15) days after the~~ Landlord’s good faith determination of the ~~Fair Market Rental Value~~ Base Rent for an Option Period shall be conclusive. Tenant may request in writing that Landlord provide written notice to Tenant of Landlord’s determination of Base Rent for an Option Period. Landlord shall provide Tenant with Landlord’s determination of Base Rent for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord Option Period within thirty (30) days after receipt of Tenant’s ~~Renewal Notice. Tenant shall~~written request therefore, ~~within fifteen (15) days after receipt of Landlord’s~~ but in no event shall Landlord be required to provide such determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less 4 QB\21085620.3 5/31/13 08:58 AM earlier than ten (10) ~~years’ experience in appraising comparable commercial properties in such market and recognized as reputable within~~ months prior to the ~~local real estate industry, and (b) independent and none~~ then current expiration date of the ~~brokers nor their firms~~ Term. Landlord shall have ~~been employed by Landlord (with respect~~ no obligation to make improvements, decorations, repairs, alterations or additions to the ~~Building), Tenant or their affiliates~~ Premises as a condition to Tenant’s obligation to pay rent for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenantapplicable Option Period.

Appears in 1 contract

Samples: Lease (OMNICELL, Inc)

Right to Extend. ~~Subject to the following,~~ The Tenant shall have the right ~~(the “Extension Option”)~~ to extend ~~the~~ this Lease ~~Term~~ for ~~two~~ one (21) ~~successive periods~~ extension term of five (5) years ~~each (each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice~~ (the ~~“Renewal Notice”~~"Extension Term") ~~irrevocably exercising such extension~~commencing on the day following the last day of the Term, ~~which~~ subject to the following terms and conditions: (a) the Tenant's right to extend is personal to the original Tenant and does not extend to any assignee or subtenant so that the right to extend terminates upon any assignment of this Lease or upon any subletting of all or any part of the Premises (b) the Tenant shall not be entitled to any right of extension if, at the time of the giving of the notice ~~must~~ of exercise thereof, the Tenant is in default hereunder or if prior thereto the Tenant has been in default hereunder on a consistent basis; (c) the right of extension shall be ~~received~~ exercisable by notice by the Tenant to the Landlord not later than ~~the date twelve~~ nine (129) months prior to the ~~otherwise applicable last day~~ expiration of the Term, failing which notice such right shall be terminated; (d) if the Tenant has properly exercised its right of extension, this Lease ~~Term (as the same may have been~~ shall be extended for the ~~first~~ Extension Term ~~Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon~~ on the same terms and conditions ~~except that~~ as are contained in this Lease supplemented as follows: (i) ~~during~~ all references to the ~~second~~ Term ~~Extension, Tenant~~ shall ~~have no further option~~ be deemed to ~~extend~~ include the Extension Term, (ii) the ~~Base~~ Basic Rent ~~for each~~ during the Extension Term will be as stipulated in subsection (e), (iii) there shall be no further right to extend and (iv) there shall be no tenant inducements, rent-free periods or Landlord's Work; (e) the annual Basic Rent during the Extension Term shall be the greater of (ai) ~~ninety-five (95%)~~ the annual Basic Rent payable during the last year of the ~~Fair Market Rental Value~~ Term and (ii) the market rent for the Premises as ~~determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension~~ of ~~the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to~~ the commencement of the Extension Term ~~or otherwise provide~~ and on the basis of all relevant circumstances applicable to lease extensions except that the Landlord shall not be responsible for paying any ~~amount of free rent or improvement allowance in respect of~~ inducements whatsoever to the ~~Premises. Any exercise of an Extension Option by~~ Tenant ~~as provided herein~~ and the Basic Rent shall not be adjusted to reflect this fact and shall be ~~irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent~~ negotiated in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, good faith by the Landlord and the Tenant ~~shall execute an amendment to this Lease confirming same~~and, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at failing agreement by three months before the commencement of the ~~Term Extension~~Extension Term, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall ~~notify Tenant of the applicable Fair Market Rental Value as~~ be determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined arbitration in accordance with the ~~terms hereof~~ Arbitrations Act (Ontario); and (f) if the Basic Rent during the Extension Term has not been settled by the commencement of the Extension Term, the Tenant shall ~~be final and binding on~~ pay, as Basic Rent, the amount suggested by the Landlord and ~~Tenant~~when a final determination has been made the parties shall promptly make the appropriate adjustments.

Appears in 1 contract

Samples: Lease (E Cruiter Com Inc)

Appears in 1 contract

Samples: Lease Agreement (Evolus, Inc.)

Right to Extend. ~~Subject~~ Provided that Tenant is not in Default under any provision of this Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease to ~~the following~~an Affiliate as described in Section 9.2 hereof), Tenant may extend the Term of this Lease for one period of 36 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased by Landlord in the Building as of the commencement of the extension period, based on a reasonable extrapolation of Landlord’s then-current leasing rates (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, than the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in Santa Xxxxx County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date of the Term Extension, Tenant initially~~ appraiser(s) shall ~~pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to~~ be ~~made within fourteen (14) days after the determination of Fair Market Rental Value~~shared equally by both parties. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute and return same to Landlord within 10 days. Should the Prevailing Rate not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this Section to other than an Affiliate shall be void from its inception. Tenant shall have no other right to extend the Term beyond the single 36 month extension created by this Section. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the ~~parties hereunder~~Premises by Tenant, or otherwise, shall be deemed a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. ~~Tenant~~ Time is specifically made of the essence in this Section. Promptly following receipt of the Commitment Notice, Landlord shall ~~not be entitled to exercise its extension right pursuant~~ prepare an appropriate amendment to the ~~terms of this Section if, at~~ Lease memorializing the ~~time of exercise or at the commencement~~ extension of the Term ~~Extension~~in accordance with the foregoing, ~~(i)~~ and Tenant ~~is in default beyond any applicable notice~~ shall duly execute and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by return same to Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value15 days. If Tenant fails timely to ~~notify Landlord that it rejects~~ do so, then Landlord, at its sole discretion, may either enforce its rights under this Section or, upon written notice to Tenant, elect to cause Tenant’s ~~determination~~ right to extend to be extinguished, in which event this Lease shall terminate as of the ~~Fair Market Rental Value within such fifteen (15) day period (time being~~ originally scheduled date of expiration. Should Landlord elect the ~~essence)~~latter, then this Lease shall terminate upon the scheduled date of expiration and Tenant’s rights under this paragraph shall be of no further force or effect. Any attempt to assign or transfer any right or interest created by this paragraph to other than an Affiliate shall be void from its inception. Tenant shall ~~be deemed~~ have no other right to ~~have irrevocably accepted Landlord’s determination of~~ extend the ~~Fair Market Rental Value~~Term beyond the single 36 month extension created by this paragraph. ~~If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select~~ Unless agreed to in a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers writing signed by Landlord and Tenant~~. Within ten (10) business days after the third Qualified Broker has been selected~~, ~~all~~ any extension of the ~~Qualified Brokers shall meet~~ Term, whether created by an amendment to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration this Lease or by a holdover of the ~~preceding ten (10) business day period~~Premises by Tenant, ~~arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord~~ or otherwise, shall be ~~responsible for~~ deemed a part of, and not in addition to, any ~~and all costs associated with the retention~~ duly exercised extension period permitted by this Section. Time is specifically made of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes essence of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (BioCardia, Inc.)

Right to Extend. ~~Subject to~~ Provided that no Default has occurred under any provision of this Lease, either at the ~~following~~time of exercise of the extension right granted herein or at the time of the commencement of such extension, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease, then Tenant may extend the Term of this Lease for one (1) extension period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 12 months or more than 15 months prior to the ~~otherwise applicable last day~~ Expiration Date of the Term, Tenant's irrevocable written notice of its commitment to extend (the “Commitment Notice”). The Basic Rent payable under the Lease ~~Term (as the same may have been extended for the first Term Extension), time being~~ during any extension of the ~~essence. If each such extension is timely and properly exercised, the Lease~~ Term shall be ~~automatically extended~~ determined as provided in the following provisions. If Landlord and Tenant have not by then been able to ~~include the applicable Term Extension~~ agree upon the ~~same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base~~ Basic Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the Term, then ~~current Term~~ not less than 90 days or more than 120 days prior to the Expiration Date of ~~this Agreement~~the Term, ~~and (iii)~~ Landlord shall notify Tenant in writing of the Basic Rent that would reflect the prevailing market rental rate for a 60-month renewal of comparable space in the Project (together with any increases thereof during the extension period) as of the commencement of the extension period (“Landlord's Determination”). Should Tenant disagree with the Landlord's Determination, then Tenant shall, not later than 20 days thereafter, notify Landlord in writing of Tenant's determination of those rental terms (“Tenant's Determination”). Within 10 business days following delivery of the Tenant's Determination, the parties shall attempt to agree on an appraiser to determine the fair market rental. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 business days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the fair market rental. Should each of the parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental for the Premises. Any appraiser designated hereunder shall have ~~no obligation to prepare~~an MAI certification with not less than 5 years’ experience in the valuation of commercial industrial buildings in the vicinity of the Project. Within 30 days following the selection of the appraiser and such appraiser's receipt of the Landlord's Determination and the Tenant's Determination, ~~refurbish~~ the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects the ~~Premises or any part thereof prior~~ fair market rental rate for the 60-month renewal of the Lease for the Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension period. Accordingly, either the Landlord's Determination or ~~otherwise provide any amount~~ the Tenant's Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In making such determination, the appraiser shall consider rental comparables for the Project (provided that if there are an insufficient number of ~~free rent or improvement allowance~~ comparables within the Project, the appraiser shall consider rental comparables for similarly improved space owned by Landlord in ~~respect~~ Irvine Spectrum within a 2-mile radius of the ~~Premises~~Project with appropriate adjustment for location and quality of project), but the appraiser shall not attribute any factor for brokerage commissions in making its determination of the fair market rental rate. ~~Any exercise~~ At any time before the decision of ~~an Extension Option~~ the appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date~~ appraiser(s) shall be borne entirely by the party whose determination of the ~~Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of~~ fair market rental rate was not accepted by the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Valueappraiser. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ fair market rental, Landlord shall prepare an appropriate amendment to this Lease for the ~~Premises as herein provided~~extension period, ~~the Landlord~~ and Tenant shall execute and return same to Landlord within 10 business days after Tenant’s receipt of same. Should the fair market rental not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely exercise the extension right granted herein within the time period expressly set forth for exercise by Tenant in the initial paragraph of this Section, Tenant's right to extend the Term shall be extinguished and the Lease shall automatically terminate as of the expiration date of the Term, without any extension and without any liability to Landlord. Tenant’s rights under this Section shall belong solely to Lantronix, Inc., a Delaware corporation, and any Affiliate, and any other attempted assignment or transfer of such rights shall be void and of no force and effect. Tenant shall have no other right to extend the Term beyond the single 60-month extension period created by this Section. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industrypart of, and ~~(b) independent and none of the brokers nor their firms shall have been employed~~ not in addition to, any duly exercised extension period permitted by ~~Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of~~ this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease Agreement (Lantronix Inc)

Right to Extend. ~~Subject~~ Provided (i) that Tenant has validly extended its lease pursuant to Section 3.5 of that certain lease dated November 30, 2011 between 4350 La Jolla Village LLC and Tenant, as amended, with respect to certain premises located at 0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, XX and Section 3.5 of that certain undated lease, as amended, between Irvine Eastgate Office I LLC and Tenant with respect to certain premises located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX, (ii) is not in monetary default beyond any applicable notice (actually provided and properly received by Tenant) and cure period under any provision of this Lease at the ~~following~~time of exercise of the extension right granted herein, and (iii) that Tenant has not assigned or is then subletting more than thirty (30%) of the Premises (except in connection with an assignment of this Lease to a Tenant Affiliate as described in Section 9.1(f) hereof), Tenant ~~shall have the right (the “Extension Option”) to~~ may extend the Term of this Lease ~~Term~~ for two (2) ~~successive~~ consecutive periods of ~~five~~ sixty (560) ~~years each (~~months each. Tenant shall exercise its right to extend the Term by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date~~ twelve (12) months nor more than fifteen (15) months prior to the ~~otherwise applicable last day~~ expiration date of the ~~Lease Term~~ then applicable Term, Tenant’s written notice of its intent to extend (as the ~~same may have been extended for~~ “Exercise Notice”). Should Tenant fail timely to deliver the ~~first Term Extension)~~Exercise Notice, ~~time being~~ then this extension right (and any future extension right granted herein) shall thereupon lapse and be of ~~the essence~~no further force or effect. ~~If each such extension is timely and properly exercised,~~ The Basic Rent payable under the Lease ~~Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i)~~ during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the extension of the ~~then current~~ Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be ~~irrevocable~~at the fair market rental (the “Prevailing Rate”), including periodic adjustments, for comparable space with similar floor location and comparable views and similarly improved office space being leased within the UTC submarket “Comparable Buildings” (as defined below). If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within Within fifteen (15) days ~~after the determination~~ following Tenant’s delivery of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable ~~notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~Exercise Notice, Landlord shall notify Tenant ~~of the applicable Fair Market Rental Value as determined by Landlord within thirty~~ in writing (30“Landlord’s Notice”) ~~days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt~~ of Landlord’s ~~determination~~ calculation of the ~~Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of~~ Prevailing Rate for the ~~Fair Market Rental Value~~current extension period. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within Within ten (10) business days following delivery of Landlord’s Notice, Tenant may, by written notice to Landlord (“Tenant’s ~~rejection notice. If a party fails~~ Notice”) elect either to ~~timely select a Qualified Broker~~(a) rescind the Exercise Notice in which event this extension right shall permanently lapse, ~~the~~ (b) accept Landlord’s determination of the ~~Fair Market Rental Value~~ Prevailing Rate, or (c) require that the rental rate for the Premises ~~shall~~ for the extension term be ~~made~~ determined by appraisal. In the ~~Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and~~ event that Tenant’s Notice provides either that Tenant ~~shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection~~ accepts Landlord’s calculation of the ~~first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after~~ Prevailing Rate or that the ~~third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value~~ rental rate for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall extension period be ~~responsible for any and all costs associated with the retention of the Qualified Broker selected~~ determined by ~~Landlord~~appraisal, Tenant shall be ~~responsible for any and all costs associated with~~ deemed to have irrevocably elected to extend the ~~retention~~ term of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected this Lease pursuant to this ~~section~~ extension right. Should Tenant fail to timely deliver the Tenant’s Notice, then Landlord shall provide an additional notice to Tenant indicating that Landlord has not received a response to Landlord’s Notice and that if a response is not received from Tenant within fifteen (15) days from the date of Landlord’s additional notice, then Landlord’s determination of the Prevailing Rate shall be ~~(a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica~~ conclusive and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value Tenant’s Exercise Notice shall be irrevocable. Within twenty (20) days following receipt of such appraisal election, the ~~average (“average”~~ parties shall ~~refer herein~~ attempt to ~~the sum of~~ agree on an appraiser to determine the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discardedrental. If ~~one determination is discarded~~the parties are unable to agree in that time, then each party shall designate an appraiser within twenty (20) days thereafter. Should either party fail to so designate an appraiser within that time, then the ~~Fair Market Rental Value~~ appraiser designated by the other party shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.determine IOPLEGAL-10-26611 5/11/2018-248639-4.2 6

Appears in 1 contract

Samples: Office Space Lease (BofI Holding, Inc.)

Right to Extend. ~~Subject to~~ Provided that Tenant is not in monetary Default under any provision of this Lease at the ~~following~~time of exercise of the extension right granted herein, and provided further that Tenant has not assigned or sublet more than 50% of its interest in this Lease (except in connection with a Permitted Transfer of this Lease as described in Section 9.1(e) hereof), Tenant may extend the Term of this Lease for two periods of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased by Landlord in the Building as of the commencement of the extension period, as evidenced by actual recent lease transactions completed by Landlord in the Project (the “Prevailing Rate”); provided that such Basic Rent shall in no event be less than the Basic Rent payable by Tenant during the final month of the Term. In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in Orange County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the Project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for market tenant improvement allowances or brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date~~ appraiser(s) shall be borne entirely by the party whose determination of the ~~Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of~~ fair market rental rate was not accepted by the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Valueappraiser. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ fair market rental, Landlord shall prepare a reasonably appropriate amendment to this Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute and return same to Landlord within 10 days. Should the fair market rental not be established by the commencement of the extension period, then Tenant shall continue paying rent at the rate in effect during the last month of the initial Term, and a lump sum adjustment shall be made promptly upon the determination of such new rental. If Tenant fails to timely comply with any of the provisions of this paragraph, Tenant’s right to extend the Term may, at Landlord’s election and in addition to any other remedies that may be available to Landlord, be extinguished, in which event the Lease shall automatically terminate as of the initial expiration date of the Term. Any attempt to assign or transfer any right or interest created by this paragraph to other than an assignee following a Permitted Transfer shall be void from its inception. Unless agreed to in a writing signed by Landlord and Tenant, Tenant shall have no other right to extend the Term beyond the two 60 month extensions created by this paragraph. Unless agreed to in a writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination~~ a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. Time is specifically made of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (Clean Energy Fuels Corp.)

Right to Extend. ~~Subject~~ Provided that Tenant is not in Default under any provision of the Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in the Lease (except in connection with a Permitted Transfer of this Lease to ~~the following~~a Tenant Affiliate), Tenant may extend the Term of the Lease for one period of 60 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Term, Tenant’s written notice of its irrevocable commitment to extend (the “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent payable under the Lease ~~Term (as~~ during the ~~same may have been extended for the first Term Extension), time being~~ extension of the ~~essence. If each such extension is timely and properly exercised, the Lease~~ Term shall be ~~automatically extended~~ at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space and buildings in the University Towne Center market of San Diego as of the commencement of the extension period, as determined by Landlord, based on a reasonable extrapolation of Landlord’s then-current leasing rates taking into consideration any rent concessions, tenant improvements paid by Landlord or other leasing concessions customarily provided by Landlord. Promptly following receipt of the Commitment Notice, Landlord shall prepare an appropriate amendment to ~~include~~ the ~~applicable~~ Lease memorializing the extension of the Term ~~Extension~~ in accordance with the foregoing, and Tenant shall duly execute and return same to Landlord within 20 days. If Tenant fails timely to do so, then Landlord, at its sole discretion, may either enforce its rights under this Section or, upon written notice to Tenant, elect to cause Tenant’s right to extend to be extinguished, in which event the Lease shall terminate as of the originally scheduled date of expiration. Should Landlord elect the latter, then the Lease shall terminate upon the ~~same terms~~ scheduled date of expiration and ~~conditions except that (i) during the second Term Extension,~~ Tenant’s rights under this paragraph shall be of no further force or effect. Any attempt to assign or transfer any right or interest created by this paragraph to other than a Tenant Affiliate shall be void from its inception. Tenant shall have no ~~further option~~ other right to extend the ~~Term~~Term beyond the single 60 month extension created by this paragraph. Unless agreed to in a writing signed by Landlord and Tenant, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the any extension of the ~~then current Term of this Agreement~~Term, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option whether created by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value~~a part of, and not in addition to, any duly exercised extension period permitted by this Section. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s ~~rejection notice. If~~ Right to Extend is subject and subordinate to the expansion rights (whether such rights are designated as a ~~party fails to timely select a Qualified Broker~~right of first offer, ~~the determination~~ right of ~~the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker~~first refusal, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2expansion option or otherwise) of any ~~and all costs associated with the retention~~ tenant of the ~~third Qualified Broker~~Building existing on the date hereof. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none Time is specifically made of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes essence of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease Amendment (Neothetics, Inc.)

Right to Extend. ~~Subject to the following,~~ Tenant ~~shall have~~ is hereby granted the right ~~(the “Extension Option”)~~ to extend ~~the~~ this Lease ~~Term~~ for ~~two (2) successive periods~~ a term of five (5) years ~~each~~ commencing March 1, 2001 and terminating February 28, 2006 (~~each, an “Term Extension” and collectively~~ the ~~“Term Extensions”), by giving Landlord~~ "Extended Term") subject to the following conditions: (a) Tenant serves written notice on Landlord of its intent to extend the term not less than two hundred ten (~~the “Renewal Notice”~~210) ~~irrevocably exercising such extension, which notice must be received by Landlord not later than the date twelve (12) months~~ days prior to the ~~otherwise applicable last day~~ expiration of the ~~Lease Term~~ original term (as the ~~same may have been extended for the first Term Extension~~"Extension Notice"), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and ; (b) Tenant is not in default under the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease ~~confirming same, provided that the failure of~~ either ~~party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if,~~ at the time ~~of exercise~~ it serves the said notice or at the commencement of the Extended Term; (c) the base rental payable by Tenant during the Extended Term ~~Extension~~shall be the "prevailing market rental rate" as hereinafter defined and (d) during the Extended Term, ~~(i) Tenant~~ all terms and conditions of the Lease shall remain in effect and unchanged except for the Base Rental pursuant to this Section. As used herein, the "prevailing market rental rate" shall mean and refer to the rent at which Landlord is then marketing space in ~~default beyond any applicable notice and cure period provided~~ the Building, comparable to the premises. If there is no comparable space being marketed in ~~this Lease, or (ii) this Lease is not in full force and effect. In~~ the ~~event Tenant timely delivers its Renewal Notice as set forth above~~Building, Landlord and Tenant shall ~~notify Tenant of~~ attempt to agree upon the ~~applicable Fair Market Rental Value as determined by Landlord~~ prevailing market rental rate within thirty (30) days ~~after~~ of the date of receipt by Landlord of ~~Tenant’s Renewal~~ the Extension Notice. If Landlord and Tenant ~~shall,~~ are unable to agree upon the prevailing market rate within ~~fifteen~~ said thirty (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (1530) day ~~period (time being of the essence)~~period, Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a ~~Qualified Broker~~ real estate broker or appraiser or other qualified person experienced in determining market rental rates. The brokers or appraisers shall make their determination in writing within forty-five (~~as defined below~~45) days of the date of the receipt by Landlord of the Extension Notice. If the valuations determined by the said brokers or appraisers are within ten (10%) ~~business days following delivery~~ percent of ~~Tenant’s rejection notice~~one another, the average of the two valuations shall be the prevailing market rental rate and as such, shall be the Base Rent payable of Tenant during the Extended Term. If ~~a party fails to timely select a Qualified Broker,~~ the ~~determination~~ valuations are not within ten (10%) percent of ~~the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker~~one another, the two ~~(2) Qualified Brokers selected by Landlord and Tenant~~ brokers or appraisers shall select a third ~~Qualified Broker~~ qualified person. The third qualified person shall make his or her determination in writing within thirty (30) days of his or her selection. In such event, the prevailing market rate (and the Base Rental payable by ~~mutual agreement reached within five (5~~Tenant during the Extended Term) ~~business days after selection~~ shall be defined as the average of the ~~first~~ two closest (2in terms of dollars) ~~Qualified Brokers~~ of the three valuations. Each party shall be responsible for paying for its own valuation pursuant to this section; provided, however, that the cost of the third appraiser or broker shall be shared equally by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determinationNotwithstanding anything contained herein, in ~~which case it~~ no event shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and Tenant.the

Appears in 1 contract

Samples: Industrial Space Lease (Griffith Micro Science International Inc)

Right to Extend. ~~Subject to~~ Provided there is no Event of Default under any provision of the ~~following~~Lease at the time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Original Premises, the entire Expansion Space, or both, and has not assigned or sublet any of its interest in the Lease (except in connection with a Permitted Transfer), Tenant may extend the Term of the Lease, for either the Original Premises, the Expansion Space, or both (but in all events only if Tenant then occupies the portion of the Premises), for one (1) period of 24 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant’s written notice of its irrevocable commitment to extend (~~ii)~~ the ~~Base~~ “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Annual Rent ~~for each Term Extension shall be~~ and Monthly Installment of Rent payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space being leased in Santa Xxxxx based on then-current leasing rates for similarly improved office space being in Santa Xxxxx (the “Prevailing Rate”). In the event that the parties are not able to agree on the Prevailing Rate within 120 days prior to the expiration date of the Term, then ~~current Term~~ either party may elect, by written notice to the other party, to cause said rental, including subsequent adjustments, to be determined by appraisal as follows. Within 10 days following receipt of ~~this Agreement~~such appraisal election, ~~and (iii) Landlord~~ the parties shall attempt to agree on an appraiser to determine the Prevailing Rate. If the parties are unable to agree in that time, then each party shall designate an appraiser within 10 days thereafter. Should either party fail to so designate an appraiser within that time, then the appraiser designated by the other party shall determine the Prevailing Rate. Should each of the parties timely designate an appraiser, than the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the fair market rental value of the Premises. Any appraiser designated hereunder shall have ~~no obligation~~ an M.A.I. certification or equivalent with not less than 5 years experience in the valuation of commercial office buildings in Santa Xxxxx County, California. Within 10 days following the selection of the appraiser, Landlord and Tenant shall each submit in writing to ~~prepare~~the appraiser its determination of the rental rate for the extension period (respectively, ~~refurbish~~ the “Landlord’s Determination” and the “Tenant’s Determination”). Should either party fail timely to submit its rental determination, then the determination of the other party shall be conclusive and binding on the parties. The appraiser shall not disclose to either party the rental determination of the other party until the expiration of that 10 day period or, if sooner, the appraiser’s receipt of both the Landlord’s Determination and the Tenant’s Determination. Within 30 days following the selection of the appraiser and such appraiser’s receipt of the Landlord’s Determination and the Tenant’s Determination, the appraiser shall determine whether the rental rate determined by Landlord or ~~construct~~ by Tenant more accurately reflects Prevailing Rate for the ~~Premises or any part thereof prior~~ Premises, as reasonably extrapolated to the commencement of the ~~Extension Term~~ extension term. Accordingly, either the Landlord’s Determination or ~~otherwise provide~~ the Tenant’s Determination shall be selected by the appraiser as the fair market rental rate for the extension period. In determining such value, the appraiser shall first consider rental comparables for the Building and the project, provided that if adequate comparables do not exist then the appraiser may consider transactions involving similarly improved space owned by Landlord or its affiliates in the vicinity with appropriate adjustments for differences in location and quality of project. In no event shall the appraiser attribute factors for brokerage commissions to reduce said fair market rental. At any ~~amount of free rent or improvement allowance in respect~~ time before the decision of the ~~Premises. Any exercise of an Extension Option~~ appraiser is rendered, either party may, by ~~Tenant as provided herein~~ written notice to the other party, accept the rental terms submitted by the other party, in which event such terms shall be ~~irrevocable~~deemed adopted as the agreed fair market rental. ~~If for any reason the Fair Market Rental Value has not been determined as~~ The fees of the ~~commencement date of the Term Extension, Tenant initially~~ appraiser(s) shall ~~pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to~~ be ~~made within fourteen (14) days after the determination of Fair Market Rental Value~~shared equally by both parties. ~~If Tenant exercises the Extension Option, within fifteen (15)~~ Within 20 days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a reasonably appropriate amendment to the Lease for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute ~~an amendment~~ and return same to ~~this Lease confirming same, provided that~~ Landlord within 10 days. Should the ~~failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall~~ Prevailing Rate not be ~~entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at~~ established by the commencement of the ~~Term Extension~~extension period, ~~(i)~~ then Tenant is shall continue paying rent at the rate in ~~default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In~~ effect during the ~~event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant~~ last month of the ~~applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall~~initial Term, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant and a lump sum adjustment shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, made promptly upon the determination of ~~the Fair Market Rental Value for the Premises~~ such new rental. Any attempt to assign or transfer any right or interest created by this Section to other than pursuant to a Permitted Transfer shall be ~~made by the Qualified Broker selected by the other party~~void from its inception. ~~If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and~~ Tenant shall ~~select~~ have no other right to extend the Term beyond the extension created by this Section. Unless agreed to in a ~~third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers~~ writing signed by Landlord and Tenant~~. Within ten (10) business days after the third Qualified Broker has been selected~~, ~~all~~ any extension of the ~~Qualified Brokers shall meet~~ Term, whether created by an amendment to ~~attempt to agree upon~~ the ~~Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration~~ Lease or by a holdover of the ~~preceding ten (10) business day period~~Premises by Tenant, ~~arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord~~ or otherwise, shall be ~~responsible for~~ deemed a part of, and not in addition to, any ~~and all costs associated with the retention~~ duly exercised extension period permitted by this paragraph. Time is specifically made of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to essence in this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease Agreement (Chegg, Inc)

Right to Extend. ~~Subject to the following,~~ (a) The Tenant ~~shall have the right (the “Extension Option”) to~~ may extend the term of this Lease ~~Term~~ for ~~two (2) successive periods~~ one further term of five (5) years ~~each~~ (~~each, an “Term Extension” and collectively~~ such term being called the ~~“Term Extensions”~~"Extension Term"), ~~by giving Landlord written notice (~~commencing on the ~~“Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later than~~ day following the date ~~twelve~~ of expiration of the Term, provided that the Tenant shall only be entitled to extend this Lease if it: (12i) is not in default of any provision of the Lease beyond any cure period provided in respect of such default in the Lease; and (ii) advises the Landlord in writing that it wishes to extend this Lease not less than 6 months prior to the ~~otherwise applicable last day~~ expiration of the Term. (b) If the Tenant exercises its right of extension in accordance with the foregoing, this Lease ~~Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term~~ shall be ~~automatically~~ extended ~~to include the applicable Term Extension~~ upon the same terms and conditions herein contained, save and except ~~that~~ as follows: (i) ~~during the second Term Extension, Tenant shall have~~ there will be no further ~~option to extend the Term,~~ right of extension; (ii) the ~~Base~~ Landlord will not be required to perform the Landlord's Work, if any, and the Tenant will not be required to perform the Tenant's Work, if any, and the Tenant will not be entitled to any leasehold improvement allowance, tenant inducement or rent free period; (iii) the Basic Rent ~~for each Term Extension~~ shall be the ~~greater of (a) ninety-five (95%)~~ then current fair Market Rental of the ~~Fair Market Rental Value~~ Premises, as established by the mutual agreement of the Landlord and the Tenant but not less than that payable in the last year of the Term. If the Basic Rent for the ~~Premises as~~ Extension Term has not been agreed upon by the Landlord and the Tenant at least 90 days prior to the expiry of the Term, the Basic Rent for the Extension Term will be determined in accordance with the ~~terms hereof, and~~ following procedure: (bA) the Base Rent then in effect immediately prior to the extension of the then current Term of this Agreement, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party ~~selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached~~ will within five (5) ~~business days after selection~~ Business Days of the ~~first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all~~ expiry of the ~~Qualified Brokers shall meet~~ time period referred to ~~attempt to agree upon~~ above appoint a qualified real estate appraiser and advise, in writing, the ~~Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration~~ other party of the ~~preceding ten~~ person appointed (10which notice shall set out the Appraiser's name, address, phone and fax number and experience); (B) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) ~~years~~ Business Days of both Appraisers being appointed, the two Appraisers so chosen shall appoint a third Appraiser and advise the Landlord and the Tenant of such appointment; (~~each~~ C) if either party fails to appoint an Appraiser within five (5) Business Days of receiving written notice from the other party of the appointment of such ~~broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value~~ party's Appraiser, then the Appraiser so appointed shall ~~be the average (“average” shall refer herein to the sum of~~ determine the fair market ~~rent determinations divided by the number of brokers)~~ rental value of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises ~~determined~~ in accordance with the ~~terms hereof~~ procedure set out below; (D) in order to be selected as an Appraiser, the person so selected shall be ~~final~~ qualified by education, experience and training to value real estate for rental purposes in the Province of Ontario and have been ordinarily engaged in the valuation of real property in the Greaxxx Xxxxxxx xxxa for the 5 years immediately preceding their appointment; (E) acting independently of each other, each of the 3 Appraisers within 30 days after the appointment of the third Appraiser (or, if only 1 Appraiser is appointed, that Appraiser) shall submit to the Landlord and the Tenant a written report and appraisal stating his/her opinion as to the Market Rental of the Premises during the Extension Term. The 2 of the 3 appraisals reported by the 3 Appraisers which are closest in amount shall be averaged and the Basic Rent for the Extension Term will be equal to such averaged amount (or, if only 1 Appraiser has been appointed, the Basic Rent for the Extension Term will be equal to the amount determined by such Appraiser). Provided that in no event shall the Basic Rent be less than that payable during the last year of the Term. The determination of the Basic Rent for the Extension Term in accordance with the foregoing will be conclusive and binding on upon the Landlord and the Tenant; and 68 (F) the cost of the Appraiser selected by a party shall be borne by that party and the costs of the third Appraiser shall be borne equally by the parties.

Appears in 1 contract

Samples: Office Lease (Delano Technology Corp)

Right to Extend. ~~Subject to~~ Provided that Tenant is not in Default under any provision of this Lease at the ~~following~~time of exercise of the extension right granted herein, and provided further that Tenant is occupying the entire Premises and has not assigned or sublet any of its interest in this Lease (except in connection with a Permitted Transfer of this Lease as described in Section 9.1(e) hereof), Tenant may extend the Term of this Lease for one period of 36 months. Tenant shall ~~have the~~ exercise its right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two (2) successive periods of five (5) years each (each~~by and only by delivering to Landlord, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not ~~later~~ less than ~~the date twelve (12)~~ 9 months nor more than 12 months prior to the ~~otherwise applicable last day~~ expiration date of the Term, Tenant’s written notice of its irrevocable commitment to extend (the “Commitment Notice”). Should Tenant fail timely to deliver the Commitment Notice, then this extension right shall thereupon lapse and be of no further force or effect. The Basic Rent payable under the Lease ~~Term (as~~ during the ~~same may have been extended for the first Term Extension), time being~~ extension of the ~~essence. If each such extension is timely and properly exercised, the Lease~~ Term shall be ~~automatically extended~~ at the prevailing market rental rate (including periodic adjustments) for comparable and similarly improved office space in the Building and Project as of the commencement of the extension period, as determined by Landlord, based on a reasonable extrapolation of Landlord’s then-current leasing rates. In no event shall the monthly Basic Rent payable for the extension period be less than the Basic Rent payable during the month immediately preceding the commencement of such extension period. Promptly following receipt of the Commitment Notice, Landlord shall prepare an appropriate amendment to ~~include~~ the ~~applicable~~ Lease memorializing the extension of the Term ~~Extension~~ in accordance with the foregoing, and Tenant shall duly execute and return same to Landlord within 15 days. If Tenant fails timely to do so, then Landlord, at its sole discretion, may either enforce its rights under this Section or, upon written notice to Tenant, elect to cause Tenant’s right to extend to be extinguished, in which event this Lease shall terminate as of the originally scheduled date of expiration. Should Landlord elect the latter, then this Lease shall terminate upon the ~~same terms~~ scheduled date of expiration and ~~conditions except that (i) during the second Term Extension,~~ Tenant’s rights under this paragraph shall be of no further force or effect. Any attempt to assign or transfer any right or interest created by this paragraph to other than a Permitted Transfer shall be void from its inception. Tenant shall have no ~~further option~~ other right to extend the ~~Term~~Term beyond the single 36 month extension created by this paragraph. Unless agreed to in a writing signed by Landlord and Tenant, (ii) the Base Rent for each Term Extension shall be the greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to the any extension of the ~~then current Term of this Agreement~~Term, and (iii) Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof prior to the commencement of the Extension Term or otherwise provide any amount of free rent or improvement allowance in respect of the Premises. Any exercise of an Extension Option whether created by Tenant as provided herein shall be irrevocable. If for any reason the Fair Market Rental Value has not been determined as of the commencement date of the Term Extension, Tenant initially shall pay Base Rent in an amount equal to one hundred three percent (103%) of the Base Rent in effect immediately prior to the commencement date of the Term Extension , with a retroactive adjustment to be made within fourteen (14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15) days after the determination of the Fair Market Rental Value for the Premises as herein provided, the Landlord and Tenant shall execute an amendment to this Lease ~~confirming same, provided that the failure of either party to do so shall not affect the rights and obligations~~ or by a holdover of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this LeasePremises by Tenant, or ~~(ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above~~otherwise, Landlord shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall, within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Value. If Tenant fails to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed ~~to have irrevocably accepted Landlord’s determination~~ a part of, and not in addition to, any duly exercised extension period permitted by this paragraph. Time is specifically made of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), then Landlord and Tenant shall each select a Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker, the determination of the Fair Market Rental Value for the Premises shall be made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes essence of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Lease (BioNano Genomics, Inc)

Right to Extend. ~~Subject to the following~~Provided that Tenant is not then in default under any provision of this Lease, Tenant may extend the Term of this Lease for one period of sixty (60) months. Tenant shall ~~have the~~ exercise such right ~~(the “Extension Option”)~~ to extend the ~~Lease~~ Term ~~for two~~ by and only by delivering to Landlord, not less than nine (29) successive periods of five (5) years each (each, an “Term Extension” and collectively the “Term Extensions”), by giving Landlord written notice (the “Renewal Notice”) irrevocably exercising such extension, which notice must be received by Landlord not later months or more than ~~the date~~ twelve (12) months prior to the ~~otherwise applicable last day~~ scheduled expiration date of the Lease Term (as the same may have been extended for the first Term Extension), time being of the essence. If each such extension is timely and properly exercised, the Lease Term shall be automatically extended to include the applicable Term Extension upon the same terms and conditions except that (i) during the second Term Extension, Tenant shall have no further option to extend the Term, Tenant's written notice of its irrevocable election to extend (~~ii)~~ the ~~Base~~ "Exercise Notice"). Tenant's failure timely to deliver the Exercise Notice shall cause this extension right to lapse and be of no further force or effect. The Basic Rent ~~for each Term Extension shall be~~ payable under the ~~greater of (a) ninety-five (95%) of the Fair Market Rental Value for the Premises as determined in accordance with the terms hereof, and (b) the Base Rent then in effect immediately prior to~~ Lease during the extension of the Term shall be at the prevailing rental rate and other economic terms for office space being leased by Landlord in the Project with a term commencing at or about the commencement of the applicable extension period, as determined by Landlord based on a reasonable extrapolation of its then-current leasing rates (the "Prevailing Rate"). In determining the Prevailing Rate, recent new and renewal leases with non-equity tenants of the Project shall be considered. The Prevailing Rate shall reflect the rental rate and terms payable in those third party transactions, taking into account pertinent economic concessions then ~~current Term of this Agreement~~generally being granted by Landlord such as "free rent," Operating Expense base years, parking charge limitations, and the like. It is understood, however, that no consideration shall be given to brokerage commissions, lease "takeover" payments, moving allowances, or tenant improvement allowances (~~iii~~other than retrofit allowances granted to renewal tenants). The rental rates payable in any third party transactions executed more than six (6) ~~Landlord shall have no obligation to prepare, refurbish or construct the Premises or any part thereof~~ months prior to the commencement of the ~~Extension Term or otherwise provide any amount of free rent or improvement allowance in respect~~ extension period shall be reasonably extrapolated, if applicable, to reflect current rental trends. Following Tenant's delivery of the ~~Premises. Any exercise of an Extension Option by Tenant as provided herein shall be irrevocable. If for any reason~~ Exercise Notice, but not later than six (6) months prior to the ~~Fair Market Rental Value has not been determined as of the commencement~~ expiration date of the ~~Term Extension~~Term, Landlord shall notify Tenant ~~initially shall pay Base Rent~~ in ~~an amount equal~~ writing ("Landlord's Notice") of Landlord's calculation of the Prevailing Rate for the extension period based on the foregoing criteria. Should Tenant dispute Landlord's calculation, then Tenant may, by written notice to ~~one hundred three percent~~ Landlord within thirty (~~103%~~30) days following Landlord's Notice, submit the reasonableness of Landlord's calculation of the Prevailing Rate to arbitration in accordance with Section 14.7(b) of the ~~Base Rent in effect immediately prior~~ Lease (the "Arbitration Election"). Should Tenant fail timely to make the ~~commencement date~~ Arbitration Election, then Landlord's determination of the ~~Term Extension , with a retroactive adjustment to~~ Prevailing Rate shall be ~~made within fourteen~~ conclusive. Within twenty (~~14) days after the determination of Fair Market Rental Value. If Tenant exercises the Extension Option, within fifteen (15~~20) days after the determination of the ~~Fair Market Rental Value~~ Prevailing Rate, Landlord shall prepare a commercially reasonable amendment to this Lease consistent with the foregoing for the ~~Premises as herein provided, the Landlord~~ extension period and Tenant shall execute ~~an amendment~~ and return same to this Lease confirming same, provided that the failure of either party to do so shall not affect the rights and obligations of the parties hereunder. Tenant shall not be entitled to exercise its extension right pursuant to the terms of this Section if, at the time of exercise or at the commencement of the Term Extension, (i) Tenant is in default beyond any applicable notice and cure period provided in this Lease, or (ii) this Lease is not in full force and effect. In the event Tenant timely delivers its Renewal Notice as set forth above, Landlord ~~shall notify Tenant of the applicable Fair Market Rental Value as determined by Landlord within thirty (30) days after receipt of Tenant’s Renewal Notice. Tenant shall,~~ within fifteen (15) days after receipt of Landlord’s determination of the Fair Market Rental Value, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Valuedays. If Tenant fails timely to notify Landlord that it rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence), Tenant shall be deemed to have irrevocably accepted Landlord’s determination of the Fair Market Rental Value. If Tenant rejects Landlord’s determination of the Fair Market Rental Value within such fifteen (15) day period (time being of the essence)do so, then Landlord ~~and~~ may either enforce its rights under this Section or, upon written notice to Tenant, elect to cause Tenant's right to extend to be extinguished, in which event this Lease shall terminate as of the originally scheduled date of expiration. Should the Prevailing Rate not be established by the commencement of the extension period, then Tenant shall ~~each select~~ continue paying rent at the rate in effect during the month preceding such commencement, and a ~~Qualified Broker (as defined below) within ten (10) business days following delivery of Tenant’s rejection notice. If a party fails to timely select a Qualified Broker,~~ lump sum adjustment shall be made promptly upon the determination of ~~the Fair Market Rental Value for the Premises~~ such new rental. The right to extend granted in this Section shall be personal to the original Tenant and may not be assigned or transferred by it except in connection with an assignment of this Lease to a Tenant Affiliate. Any other attempt to assign or transfer such right shall be void from its inception. Time is specifically made by the Qualified Broker selected by the other party. If each party selects a Qualified Broker, the two (2) Qualified Brokers selected by Landlord and Tenant shall select a third Qualified Broker by mutual agreement reached within five (5) business days after selection of the first two (2) Qualified Brokers by Landlord and Tenant. Within ten (10) business days after the third Qualified Broker has been selected, all of the Qualified Brokers shall meet to attempt to agree upon the Fair Market Rental Value for the Premises. If the Qualified Brokers are unable to reach agreement, all Qualified Brokers shall, within ten (10) business days after the expiration of the preceding ten (10) business day period, arrange to simultaneously submit to Landlord and Tenant essence in writing their determinations of Fair Market Rental Value. Landlord shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Landlord, Tenant shall be responsible for any and all costs associated with the retention of the Qualified Broker selected by Tenant and Landlord and Tenant shall each be responsible for one half (1/2) of any and all costs associated with the retention of the third Qualified Broker. All brokers selected pursuant to this section shall be (a) a commercial real estate broker licensed in Massachusetts, specializing in the leasing of laboratory space in the Bedford, Billerica and Burlington, Massachusetts submarket, with not less than ten (10) years’ experience in appraising comparable commercial properties in such market and recognized as reputable within the local real estate industry, and (b) independent and none of the brokers nor their firms shall have been employed by Landlord (with respect to the Building), Tenant or their affiliates for the immediately preceding five (5) years (each such broker being defined herein for purposes of this paragraph as a “Qualified Broker”). The Fair Market Rental Value shall be the average (“average” shall refer herein to the sum of the fair market rent determinations divided by the number of brokers) of the fair market rent determinations of the three (3) brokers, unless the highest determination of the three (3) brokers is greater than 10% higher than the next highest determination, in which case it shall be discarded, or unless the lowest of the three (3) determinations is greater than 10% lower than the next lowest determination, in which case it shall be discarded. If one determination is discarded, then the Fair Market Rental Value shall be the average of the remaining two (2) determinations. If both the highest determination and the lowest determination are discarded, then the Fair Market Rental Value shall be the remaining determination. The Fair Market Rental Value for the Premises determined in accordance with the terms hereof shall be final and binding on Landlord and TenantSection.

Appears in 1 contract

Samples: Office Space Lease (Netratings Inc)

Common use of Right to Extend Clause in Contracts