Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the following options (“Extension Options”) to extend the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms. 2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3. 2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended. 2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within thirty (30) days after Landlord’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice. 2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect. 2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effect.
Appears in 1 contract
Extension Options. 2.3.1 Subject (a) Tenant is hereby granted options to and in accordance with extend the terms and conditions Lease Term for two (2) successive additional periods of this Section 2.3three (3) years each (each such additional period being herein referred to as an "Extended Term") by giving written notice of such extension to Landlord at least twelve (12) months prior to the expiration of the initial Lease Term or the then current Extended Term, as the case may be. Tenant shall have the following right to exercise these options (“Extension Options”) to extend provided that on the Term date of the Leasesuch exercise no default or event of default under this Lease then exists. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Extended Term shall be upon all of the same terms, covenants and conditions and provisions applicable to the then-current Term of this Lease then applicable except that the Base Rental Rate during the Extended Terms shall be the "Market Rate" (as hereinafter defined), and except as provided otherwise herein). that after the exercise of the option for the first Extended Term, Tenant shall have only one (1) option to extend, and after the exercise of the option for the second Extended Term, Tenant shall have no further options to extend the Lease Term, except . The term "Lease Term" as expressly set forth used in this Section 2.3.
2.3.3 The monthly Extension Lease shall mean the initial Lease Term Base Rent payable with respect to and any Extended Term which may become effective. For purposes of this Special Stipulation, "Market Rate" shall mean the Tenant Space for each Extension Term shall be equal to the then prevailing base rent annual effective rental rate per square foot of rentable floor area then being charged by Landlord for comparable landlords under new leases of office space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length that portion of the Extension Termmetropolitan Richmond, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, Virginia market that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) is located south of the scheduled monthly Base Rent ▇▇▇▇▇ ------------------ River and west of I-95 for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard space similar to the first year Demised Premises in a building of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option comparable quality and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (with comparable parking and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within thirty (30) days after Landlord’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant)other amenities. In determining the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension OptionMarket Rate, Landlord and Tenant (and any appraisers, if applicable) shall execute an amendment reflecting such exercisetake into account the fact that Tenant shall pay Tenant's share of the Operating Expenses. Notwithstanding anything to Also, in determining the contrary hereinMarket Rental Rate, Landlord and Tenant (and any attempted exercise appraisers, if applicable) shall compare actual rental rates only (after making appropriate adjustments resulting from the foregoing facts) and shall take into consideration any discounts, allowances, free rent, remodeling credits, construction allowances and other concessions and inducements granted by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effectother landlords.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Extension Options. 2.3.1 Subject A. Tenant shall have the option to extend the Term hereof for two (2) additional periods of five (5) years each (hereinafter each an “Option Period”), subject to the following terms and conditions:
(i) Tenant may exercise such option by giving Landlord Notice (“Extension Notice”) of its intent to exercise said option, such Extension Notice to be received by Landlord at least twelve (12) months prior to the expiration of the original Term of this Lease or the then current Option Period, as applicable; and
(ii) At the time of the Extension Notice and as of the commencement of the applicable Option Period, Tenant (i) is not in accordance with monetary or material non-monetary Default, and (ii) has not assigned this Lease or sublet more than twenty-five percent (25%) of the Leased Premises, other than to a Permitted Transferee (as hereinafter defined).
B. All other terms and conditions of this Section 2.3, Tenant Lease shall have remain unchanged and apply during the following options applicable Option Period except that Minimum Rent for such Option Period (including any periodic increases therein) shall be the then-prevailing fair market value for use of the Leased Premises (as determined below) during such Option Period (“Extension OptionsFair Rental Value”) to extend ), taking into consideration all relevant factors, including, without limitation, then-current rental rates for comparable office space in the Term City of Somerville, Massachusetts, then-current rates for office space in the Building and in the Project, and assuming the then as-is condition of the LeaseLeased Premises. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with Without limiting the Securities and Exchange Commission. Confidential Treatment has been requested foregoing, office space shall be deemed to be “comparable office space” if it is located in Class A buildings located in Somerville, Massachusetts, which are comparable to the Building with respect to age, size, quality and access to public transportation, retail and other amenities. If Tenant desires to get an estimate of what Landlord believes the omitted portions. Fair Rental Value will be, Tenant may request that Landlord give such an estimate by written notice delivered not more than eighteen (18) months prior to the commencement of the applicable Option Period, and within thirty (30) days after receipt of Tenant’s right to extend the Term request, Landlord will provide Tenant with its good faith non-binding estimate of the Lease with respect Fair Rental Value for the applicable Option Period.
C. Within thirty (30) days after receipt of Tenant’s Extension Notice (but Landlord shall not be obligated to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right deliver Notice of Landlord’s proposed Fair Rental Value more than fifteen (15) months prior to extend the Term expiration of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current original Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to or the then prevailing base rent then being charged by current Option Period), Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length shall give Tenant Notice of the Extension Term, the credit standing of Tenant, proposed Fair Rental Value and the amenities provided basis therefor. The parties shall then, in good faith, endeavor to Tenant; provided, however, that in no event shall agree between themselves on the monthly Base Rent payable by Tenant during Fair Rental Value. If the first year of any Extension Term be less than one hundred three percent (103%) of parties fail to so agree on the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord Fair Rental Value within thirty (30) days after Landlord’s delivery Notice of the Extension Option proposed Fair Rental Value, then the Fair Rental Value shall be decided by the “broker” method as provided herein.
(i) If the parties have not agreed on the Fair Rental Value within thirty (30) days after Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Optionproposed Fair Rental Value, Landlord and Tenant shall execute an amendment reflecting each send the other Notice of the broker it wishes to designate to determine the Fair Rental Value on its behalf within ten (10) business days thereafter. If either party fails to notify the other of the designation of its broker within such exerciseten (10) business day period, and such failure continues for five (5) business days after Notice of such failure, then the broker designated by the party that delivered its Notice shall be the broker to determine the Fair Rental Value for the Leased Premises. Notwithstanding anything Each broker (if two (2) brokers are designated hereunder) shall have fifteen (15) business days after the later date of each party’s Notice to the contrary hereinother hereunder to make and deliver to both parties a written determination of the Fair Rental Value.
(ii) If the two (2) brokers so appointed agree on the Fair Rental Value, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, Fair Rental Value shall be invalid, ineffectivethe amount so determined.
(iii) If the two brokers so appointed do not agree on the Fair Rental Value within such fifteen (15) business day period, and if the difference between the Fair Rental Value determined by each broker is not more than One Dollar ($1.00) per square foot of no force or effect ifFloor Area, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there Fair Rental Value shall be an uncured Event amount equal to the quotient obtained by dividing the sum of Default the Fair Rental Values determined by each broker by two (2).
(iv) If the two (2) brokers so appointed do not agree on the Fair Rental Value within such fifteen (15) business day period, and if the difference between the Fair Rental Value determined by each broker is more than One Dollar ($1.00) per square foot of Floor Area, the two (2) brokers shall within ten (10) days thereafter jointly appoint a third (3rd) broker. The third (3rd) broker shall make a valuation within thirty (30) days after its appointment, and the Fair Rental Value shall be an amount equal to the quotient obtained by dividing the sum of the two closest Fair Rental Values (calculated on an absolute dollar basis) determined among all three (3) brokers by two (2).
D. Each broker appointed pursuant to Paragraph C shall be a disinterested person of recognized competence who has had a minimum of ten (10) years of experience in the leasing of office space in the greater Boston market area. All valuations of the Fair Rental Value shall be in writing. Landlord and Tenant under this Leaseshall pay for the expenses of the broker each has designated and the expenses of the third (3rd) broker shall be borne one-half (1/2) by Landlord and one-half (1/2) by Tenant. The determination made hereunder shall be final and binding on both Landlord and Tenant.
E. If such option is not timely exercised, or (ii) Tenant’s right to extend shall expire and the Lease shall terminate at the end of the original Term or the then current Option Period, as applicable, it being agreed that time is no longer in full force or effectof the essence with respect to the giving of any exercise Notice pursuant to this Section 3.04.
Appears in 1 contract
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Landlord agrees that Tenant shall have the following have, and it is hereby granted, two (2) successive options (the “Extension Options”) to extend the Term as to any Property Location or Property Locations, in Tenant’s sole discretion, for a period of ten (10) years each (individually, an “Extension Period”, and collectively, the “Extension Periods”), each such Extension Period to begin respectively upon the expiration of the Leaseinitial Term or the prior Extension Period, with respect to such Property Location or Property Locations, as the case may be. First All of the terms, covenants and provisions of this Lease shall apply to each Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested Period with respect to the omitted portions. Tenant’s right Property Locations that Tenant elects to extend the Term extend, except that Base Rent (as defined in Section 2.01 below) for each of the Lease with respect Extension Periods shall continue to any be adjusted pursuant to the terms of Section 2.01 below, payable in equal monthly installments as Monthly Base Rent (as defined in Section 2.01). In order to exercise the Extension Term Options, Tenant shall give Landlord notice of such exercise (which notice shall identify the Property Locations that are to be conditioned upon Tenant having timely and properly exercised its right extended) no later than one hundred twenty (120) days prior to extend the Term end of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current initial Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend or the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly prior Extension Term Base Rent payable Period with respect to such Property Location or Property Locations, as the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenantcase may be; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. if Tenant shall thereafter have fail to give the notice within the aforesaid time limit, Tenant’s right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within its option shall nevertheless continue during said one hundred twenty (120) day period until thirty (30) days after Landlord shall have given Tenant notice of Landlord’s delivery election to terminate such option (“Landlord’s Notice”), and Tenant may exercise such option at any time until the expiration of said thirty (30) day period. It is the intention of the parties to avoid forfeiture of Tenant’s rights to extend the Term under any of the options set forth in this Lease through inadvertent failure to give the extension notice within the time limits prescribed. Accordingly, if Tenant shall fail to give an extension notice to Landlord for any of the Extension Option Periods, and if Landlord shall fail to give Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend then until the Term expiration of this Lease by an Extension Term on the terms set forth thirty (a30) in this Section 2.3, and (b) in the Extension Option days following Landlord’s Notice.
2.3.5 In the event , or until Tenant 1 20 years from date of Lease. 2 15 years from date of Lease. either exercises its option to extend or notifies Landlord that Tenant shall duly it does not intend to exercise an Extension Optionsaid option to extend, the Term shall be extended to include for the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, Property Location or an Extension Option Interest NoticeProperty Locations, as the case may be, within shall be extended automatically from month to month upon all the applicable time period specified herein terms and conditions then in effect, except that Monthly Base Rent shall be increased in accordance with Article 8, and in no event shall the Term for any Property Location extend beyond the delivery thereof, time being last date of the essencelast Extension Period applicable to such Property Location. Upon the failure of Tenant to exercise one or any of the options herein regarding any Property Location following Landlord’s Notice, at and, in any event, upon expiration of the election last of Landlordsuch Extension Periods with respect to such Property Location, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options no further or rights additional right to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only this Lease with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effectProperty Location.
Appears in 1 contract
Sources: Master Lease (Spirit MTA REIT)
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions Provided no Event of this Section 2.3Default exists, Tenant shall have the following options (“Extension Options”) to extend the Term of the Lease. First Extension Term: Three may renew this Lease for three (3) years additional periods of five (months 61-96) Second Extension Term: Three (35) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of each on the same terms, conditions and provisions applicable to the then-current Term of terms provided in this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged below), by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length delivering written notice of the Extension Term, exercise thereof to Landlord not later than eighteen (18) months before the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year expiration of the Term of in question. On or before the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration commencement date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within thirty (30) days after Landlord’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Optionquestion, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to this Lease extending the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, Term on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under same terms provided in this Lease, except as follows:
(a) The Base Rent payable for each month during each such extended Term shall be the fair market rental rate (the "Fair Market Rental Rate") for the Premises, taking into consideration all relevant factors for comparable leases in comparable premises, including, without limitation, the term, rent, rental concessions, allowances, and commissions payable with respect to such leases; the condition, age, quality, location, utility, efficiency and size of such comparable premises; and the credit standing of the tenants under such comparable leases;
(b) Tenant shall have no further renewal options (other than those set forth herein) unless expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their then-current condition, and Landlord shall not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other lessee inducements, unless any such allowances were included when determining the Fair Market Rental Rate. Within 30 days after receipt of Tenant's written notice to renew, Landlord shall deliver to Tenant written notice of the Fair Market Rental Rate and shall advise Tenant of the required adjustment to Base Rent, if any, and the other terms and conditions offered. Tenant shall, within ten business days after receipt of Landlord's notice, notify Landlord in writing whether Tenant accepts or rejects Landlord's determination of the Fair Market Rental Rate. If Tenant rejects Landlord's determination of the Fair Market Rental Rate and timely notifies Landlord thereof, Tenant may, in its notice to Landlord, require that the determination of the Fair Market Rental Rate be made by brokers. In such event, within ten days thereafter, each party shall select a qualified commercial real estate broker with at least ten years experience in appraising property and buildings in the city or submarket in which the Premises are located, which broker shall not have been engaged by such party for any matter during the prior three years. The two brokers shall give their opinion of prevailing rental rates within 20 days after their retention. In the event the opinions of the two brokers differ and, after good faith efforts over the succeeding 20 day period, they cannot mutually agree, the brokers shall immediately and jointly appoint a third broker with the qualifications specified above. This third broker shall promptly (within five days) choose either the determination of Landlord's broker or Tenant's broker and such choice of this third broker shall be final and binding on Landlord and Tenant. Each party shall pay its own costs for its real estate broker. Following the determination of the Fair Market Rental Rate by the brokers, the parties, shall equally share the costs of any third broker. The parties shall promptly execute an amendment as set forth above. If Tenant fails to timely notify Landlord in writing that Tenant accepts or rejects Landlord's determination of the Fair Market Rental Rate, time being of the essence with respect thereto, Tenant's rights under this Section 30 shall terminate and Tenant shall have no right to renew this Lease. Tenant's rights under this Section 30 shall terminate if(l) this Lease or Tenant's right to possession of the Premises is terminated, or (ii2) Tenant fails to timely exercise its option under this Section 30, time being of the Lease is no longer in full force or effectessence with respect to Tenant's exercise thereof.
Appears in 1 contract
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Landlord agrees that Tenant shall have the following have, and it is hereby granted, two (2) successive options (the “Extension Options”) to extend the Term as to any Property Location or Property Locations, in Tenant’s sole discretion, for a period of ten (10) years each (individually, an “Extension Period”, and collectively, the “Extension Periods”), each such Extension Period to begin respectively upon the expiration of the Leaseinitial Term or the prior Extension Period, with respect to such Property Location or Property Locations, as the case may be. First All of the terms, covenants and provisions of this Lease shall apply to each Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested Period with respect to the omitted portions. Tenant’s right Property Locations that Tenant elects to extend the Term extend, except that Base Rent (as defined in Section 2.01 below) for each of the Lease with respect Extension Periods shall continue to any be adjusted pursuant to the terms of Section 2.01 below, payable in equal monthly installments as Monthly Base Rent (as defined in Section 2.01). In order to exercise the Extension Term Options, Tenant shall give Landlord notice of such exercise (which notice shall identify the Property Locations that are to be conditioned upon Tenant having timely and properly exercised its right extended) no later than one hundred twenty (120) days prior to extend the Term end of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current initial Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend or the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly prior Extension Term Base Rent payable Period with respect to such Property Location or Property Locations, as the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenantcase may be; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. if Tenant shall thereafter have fail to give the notice within the aforesaid time limit, Tenant’s right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within its option shall nevertheless continue during said one hundred twenty (120) day period until thirty (30) days after Landlord shall have given Tenant notice of Landlord’s delivery election to terminate such option (“Landlord’s Notice”), and Tenant may exercise such option at any time until the expiration of said thirty (30) day period. It is the intention of the parties to avoid forfeiture of Tenant’s rights to extend the Term under any of the options set forth in this Lease through inadvertent failure to give the extension notice within the time limits prescribed. Accordingly, if Tenant shall fail to give an extension notice to Landlord for any of the Extension Option Periods, and if Landlord shall fail to give Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend then until the Term expiration of this Lease by an Extension Term on the terms set forth thirty (a30) in this Section 2.3, and (b) in the Extension Option days following Landlord’s Notice.
2.3.5 In the event , or until Tenant either exercises its option to extend or notifies Landlord that Tenant shall duly it does not PHIL1 681004v.14 intend to exercise an Extension Optionsaid option to extend, the Term shall be extended to include for the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, Property Location or an Extension Option Interest NoticeProperty Locations, as the case may be, within shall be extended automatically from month to month upon all the applicable time period specified herein terms and conditions then in effect, except that Monthly Base Rent shall be increased in accordance with Article 8, and in no event shall the Term for any Property Location extend beyond the delivery thereof, time being last date of the essencelast Extension Period applicable to such Property Location. Upon the failure of Tenant to exercise one or any of the options herein regarding any Property Location following Landlord’s Notice, at and, in any event, upon expiration of the election last of Landlordsuch Extension Periods with respect to such Property Location, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options no further or rights additional right to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only this Lease with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effectProperty Location .
Appears in 1 contract
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, (a) Tenant shall have the following options (“Extension Options”) right, at its option, to extend the Term term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the this Lease for all prior the Extension Terms.
2.3.2 Each Extension Term shall be Period(s) upon all of the same terms, covenants and conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly herein set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenantforth; provided, however, that in no event shall the monthly Base Minimum Rent payable by Tenant during for the first year Lease Year of any each Extension Term Period shall be less than one hundred increased to the greater of (i) the market rate then being charged for similar space in the Shopping Center or (ii) the Minimum Rent for the preceding Lease Year increased by three percent (1033%) of ). Thereafter, the scheduled monthly Base Minimum Rent for each successive Lease Year during each Extension Period shall be an amount equal to the Minimum Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further thatLease Year, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred by three percent (1033%) of per annum. In order to exercise the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice shall be required to Landlord give written notice of its intention to extend at least six (6) months but not more than nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable Lease Termination Date, or expiration date of the Termthen current Extension Period, specifying that Tenant is interested in exercising an Extension Option pursuant as the case may be. Failure to this Section 2.3. Landlord deliver timely notice as required above shall thereafter deliver cause the Extension Option Landlord’s Notice Option, and all remaining Extension Options, to Tenantlapse and be of no further force and effect. Further, if Tenant shall thereafter be in default of the terms of this Lease, Tenant shall not have the right to exercise the applicable Extension Option by delivering an and if Tenant shall default hereunder after such right has been exercised but within the six (6) month period preceding the Extension Option Exercise Notice Period such election shall, at Landlord’s option, be null and void.
(b) In the event that Tenant shall dispute Landlord’s determination of the market rate of rent being charged for similar space pursuant to the paragraph above, Tenant shall give notice to Landlord within ten (10) days of Tenant’s receipt of such Landlord’s determination, and the market rate shall be determined as follows: The market rate shall be determined by a single arbitrator appointed in accordance with the American Arbitration Association Real Estate Valuation Arbitration Proceeding Rules. Such arbitrator shall be impartial and shall have not less than ten (10) year’s experience in the County where the Shopping Center is located, in a calling related to the leasing of commercial space in premises comparable to the Shopping Center. Within fifteen (15) days following the appointment of such arbitrator each party shall submit a report setting forth its determination of the market rate of the Leased Premises for the applicable term, together with such other information as such party shall deem relevant. The arbitrator shall, within thirty (30) days after Landlord’s delivery following such hearing and submission of evidence render his decision by selecting the determination of market rate then being charged for similar space in the Shopping Center. It is expressly understood that such arbitrator shall have no power or authority to select any market rate other than the market rate submitted by Landlord or Tenant, and the decision of such arbitrator shall be final and binding upon the Landlord and Tenant. Prior to the determination of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlordarbitrator, Tenant shall be deemed pay Minimum Rent in an amount equal to have forever waived and relinquished such Extension Optionthe Landlord’s determination of market rate submitted to Tenant pursuant to this Section, and following the arbitrator’s final determination, the amount of any other options overpayment or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and underpayment shall be adjusted between the parties on demand. The cost of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there arbitration shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effect.borne by
Appears in 1 contract
Sources: Lease (Carrollton Bancorp)
Extension Options. 2.3.1 Subject Tenant shall have two options to extend the Term of this Lease (each, an “Extension Option”) for a period of five (5) years (each, an “Option Period”). Each Option Period shall be upon the same terms and conditions contained in this Lease, except for the Base Rent, which shall be the then-current Fair Market Rent for the Premises determined in accordance with the terms and conditions of this Section 2.3procedures set forth below. Notwithstanding anything to the contrary in the preceding sentence, Tenant shall have the following options (“Extension Options”) to extend the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the exercise an Extension Option only so long as (i) this Lease with respect to any Extension Term shall be conditioned upon in full force and effect, (ii) Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current Term of not have assigned this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less or sublet more than one hundred three twenty percent (10320%) of the scheduled monthly Base Rent for Premises, and (iii) no Event of Default shall have occurred and be continuing as of either the last month date Tenant purports to exercise the Extension Option or the first day of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term Option Period. Tenant shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice by giving Landlord written notice of its election to Landlord at least nine (9) calendar months (and do so not more less than twelve (12) calendar months) months prior to the then applicable expiration date end of the Term, specifying that Tenant is interested time being of the essence, and, upon the giving of such notice, the Term shall be deemed to be extended for the Option Period without the execution of any further lease or instrument.
(i) As used in exercising an Extension Option pursuant to this Section 2.33, “Fair Market Rent” shall mean the amount of annual Base Rent, expressed in dollars and cents per rentable square foot, equal to the market rental then being negotiated for renewal leases for comparable space in “Class A” mid-rise office buildings of similar quality in the suburban Wilmington, Delaware office sub-market, taking into account any rent abatement, tenant allowance and base year being offered to renewal tenants. Landlord shall thereafter deliver advise Tenant of the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord Fair Market Rent within thirty (30) days after Landlord’s delivery Tenant provides Landlord with notice of the Extension Option Landlord’s Notice Tenant's intent to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting are unable to agree on the Fair Market Rent for the Option Period within ten (10) days after Tenant’s receipt of Landlord’s rental notice, then either party may require determination of the Fair Market Rent for such exercise. Notwithstanding anything Option Period by giving written notice to that effect to the contrary hereinother party within ten (10) days thereafter, which notice shall designate a real estate broker selected by the initiating party with at least ten (10) years experience in the office leasing business in the suburban Wilmington, Delaware office sub-market. Within ten (10) days after receipt of such notice, the other party to the Lease shall select a real estate broker meeting the same requirements and give written notice of such selection to the initiating party. Within ten (10) days after selection of the second broker, the two (2) real estate brokers so selected shall select a third real estate broker with at least ten (10) years experience in the office leasing business in the suburban Wilmington, Delaware office sub-market who (and whose firm) is not then employed as an exclusive leasing broker or management agent by either party or any attempted exercise by Tenant of an Extension their respective affiliates. Each of the three (3) brokers shall determine the Fair Market Rent rate for the Premises as of the commencement of the Option shallPeriod for a term equal to the Option Period within ten (10) days after the appointment of the third broker. The Fair Market Rent shall be equal to the arithmetic average of such three determinations; provided, at however, that if any such broker’s determination deviates more than ten percent (10%) from the election median of Landlord, be invalid, ineffective, and of no force or effect if, on such determinations the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there Fair Market Rent shall be an uncured Event amount equal to the average of Default the two (2) closest determinations. Landlord shall pay the costs and fees of Landlord’s broker in connection with any determination hereunder, and Tenant shall pay the costs and fees of Tenant’s broker in connection with such determination. The cost and fees of the third broker shall be paid one-half by Tenant under Landlord and one-half by Tenant. If a party fails to designate a real estate broker within the time period required by this Leaseparagraph, or (ii) the Lease is no longer in full force or effect“third” real estate broker shall be selected by the broker designated by the initiating party, and those two brokers shall determine the Fair Market Rental by averaging their determinations.
Appears in 1 contract
Sources: Lease Agreement (InterDigital, Inc.)
Extension Options. 2.3.1 Subject (b) Notwithstanding any contrary provision of this Lease, each Option to Extend and any exercise by Tenant thereof shall be void and of no force or effect unless on the date Tenant gives Landlord its Exercise Notice for each Option to Extend and on the date of commencement of each Extension Period: (i) this Lease is in accordance with full force and effect, (ii) there is no default of Tenant under this Lease, and (iii) Tenant has not assigned this Lease or subleased fifty percent (50%) or more of the terms rentable floor area of the Premises (or agreed to so assign or sublease the Premises).
(c) All of the terms, provisions, covenants and conditions of this Section 2.3, Tenant Lease shall have the following options (“continue to apply during each Extension Options”) to extend the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the TermPeriod, except as expressly set forth in this Section 2.3.
2.3.3 The monthly that the Annual Fixed Rent Rate during each applicable Extension Term Base Rent payable with respect to Period (the Tenant Space for each "Extension Term Rent") shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in greater of (i) the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Annual-Fixed Rent Rate payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the then current Term of this Lease, or (ii) the Lease; and provided further thatfair market rent for the Premises for the applicable Extension Period, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an procedure set forth in Subsection (d) below (the "Extension Term, the monthly Base Period Fair Market Rent").
(d) The Extension Period Fair Market Rent for each subsequent year of such Extension Term Period shall be increased hereunder determined as follows: within twenty (20) days after Tenant gives Landlord its Exercise Notice, Landlord shall give Tenant notice of Landlord's determination of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Fair Market Rent for the last month applicable Extension Period. Within fifteen (15) days after such notice from Landlord, Tenant shall notify Landlord of its agreement with or objection to Landlord's determination of the immediately preceding year Extension Period Fair Market Rent, whereupon the Extension Period Fair Market Rent shall be determined by arbitration conducted in the manner set forth below. If Tenant does not notify Landlord within such fifteen (15) day period of Tenant's agreement with or objection to Landlord's determination of the Term of the LeaseExtension Period Fair Market Rent, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise Period Fair Market Rent for the applicable Extension Option Period shall be deemed to be Landlord's determination of the Extension Period Fair Market Rent as set forth in the notice from Landlord described in this Subsection (d).
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of the Extension Period Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of an Arbitrator. Within ten (10) days thereafter, Landlord shall, by delivering an notice to Tenant, appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Extension Option Exercise Notice to Landlord Period Fair Market Rent for the applicable Extension Period within thirty (30) days after Landlord’s delivery 's appointment of the second Arbitrator. On or before the expiration of such thirty (30) day period, the two Arbitrators shall confer and compare their respective determinations of the Extension Option Landlord’s Notice Period Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than or equal to Tenantten percent (10%) of the lower of said amounts, specifying that Tenant is irrevocably exercising its Extension Option so as to extend then the Term final determination of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term Period Fair Market Rent shall be extended equal to include the average of said amounts. If such difference between said amounts is greater than ten percent (10%) of the lower of said amounts then the two Arbitrators shall have ten (10) days thereafter to appoint a Third Arbitrator, who shall be instructed to determine the Extension Period Fair Market Rent for the applicable Extension Term Period within ten (and all references to 10) days after its appointment by selecting one of the Term in this Lease amounts determined by the other two 13 -13- Arbitrators. Each party shall bear the cost of the Arbitrator selected by such party. The cost of the Third Arbitrator, if any, shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised shared equally by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effectTenant.
Appears in 1 contract
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the following two options (“each, an "Extension Options”Option") to extend further the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current Term Premises as of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length expiration date of the Extension Term, for two (2) additional periods of five (5) years each (each, an "Option Term") upon the credit standing following terms and conditions:
A. Tenant gives Landlord written notice of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year its exercise of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First said Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within thirty (30) days after Landlord’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant Term.
B. No Event of Default is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term then continuing either on the date Tenant delivers the notice required under Section 4A above or at any time thereafter prior to the commencement of the Option Term.
C. All of the terms set forth and provisions of the Lease (a) in except this Section 2.34) shall be applicable to the Option Term, and (b) in except that Base Rent for the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended determined as follows: Base Rent for the Option Term shall be equal to include Landlord's determination of the applicable Extension Term Fair Value (and all references as hereinafter defined). For purposes of this Amendment, "Fair Value" shall mean Landlord's determination, utilizing its reasonable judgment, of an annual amount per rentable square foot for a term equivalent to the Term in this Lease shall be deemed period for which Fair Value is being determined beginning with the first (1/st/) day of the subject period that a willing, creditworthy, new non-equity tenant leasing comparable space to refer Tenant's would pay and a willing, comparable landlord of an industrial building comparable to the Term specified Building in Item 5 the Chicago metropolitan area (hereinafter referred to as the "Market") would accept at arm's length, giving appropriate consideration to terms of the Basic Lease InformationLease, plus all Extension Terms properly exercised by Tenantas amended hereby, annual rental rate per rentable square foot, rental escalations (including type, base year and stops), length of lease term, size and location of the premises being leased, and other generally applicable terms and conditions prevailing for comparable space in comparable buildings located in the Market. In the event that Tenant shall fail does not agree in writing to deliver an Landlord's determination of Fair Value prior to the date which is seven (7) months prior to the then expiration of the Extension Term ("Option Expiration Date"), then Tenant's exercise of the Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed null and void and this Section 4 shall be deemed null and void unless Tenant, prior to have forever waived and relinquished such Extension Optionthe Option Expiration Date, and any other options or rights to renew or extend notifies Landlord in writing that Tenant will agree that Base Rent for the Option Term effective after shall be One Hundred Two percent (102%) of the Base Rent for the last year of the then applicable expiration date of the Extension Term shall terminate and shall be of no further force or effectincrease by two percent (2%) each July 1 thereafter during the Option Term.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effect.
Appears in 1 contract
Sources: Lease (Radnor Holdings Corp)
Extension Options. 2.3.1 (a) Subject to Section 2.8(b) hereof, Borrower shall have the option to extend the term of the Loan beyond the Initial Maturity Date for two (2) successive terms (each, an “Extension Option”) of one (1) year each (each such period, an “Extension Period”) to (i) the Monthly Payment Date occurring in January, 2019 if the first Extension Option is exercised, and (ii) the Monthly Payment Date occurring in accordance with January, 2020 if the second Extension Option is exercised (each such date following the exercise of each such Extension Option is hereinafter the “Extended Maturity Date”) upon satisfaction of the following terms and conditions (in each case as determined by Lender):
(i) no Event of this Section 2.3, Tenant Default shall have occurred and be continuing at the following options time an Extension Option is exercised or on the date that the applicable Extension Period is to commence;
(“Extension Options”ii) Borrower shall notify Lender of its irrevocable election to extend the Term Maturity Date as aforesaid no later than sixty (60) days prior to the applicable Maturity Date;
(iii) Borrower shall obtain and deliver to Lender (A) no less than ten (10) days prior to the date that the applicable Extension Period is to commence, a draft of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted bid package for the Replacement Interest Rate Protection Agreement for Lender's review and filed separately approval for conformity with the Securities requirements set forth in this Agreement, and Exchange Commission. Confidential Treatment has been requested (B) prior to the date that the applicable Extension Period is to commence, a Replacement Interest Rate Protection Agreement, which Replacement Interest Rate Protection Agreement shall be effective commencing on the first day of the related Extension Period, shall expire on a date not earlier than the last day of the related Extension Period and shall conform with all the requirements of Section 2.7 hereof;
(iv) Borrower shall have paid to Lender the Extension Fee on or prior to the date the related Extension Period is to commence;
(v) as of the effective date of the applicable Extension Period, the Net Operating Income as reasonably determined by Lender shall be sufficient to provide a Debt Yield of at least 10%, and Borrower shall have demonstrated the same by delivery of its quarterly financial statements required hereunder with respect to the omitted portions. Tenant’s right to extend the Term quarter ending September 30 of the Lease applicable Fiscal Year (provided that to the extent the Debt Yield is less than 10%, Borrower shall be entitled to make a partial prepayment of the Loan in such amount as shall cause the Debt Yield to be equal to 10%);
(vi) as of the effective date of the applicable Extension Period, (1) each KSL Liable Party delivers to Lender then current certified financial statements (including a balance sheet) evidencing that such Guarantor is in compliance with the minimum Net Worth and Liquid Asset requirements set forth in the Guaranty (in each case as more particularly described therein) and (2) SHR Liable Party delivers to Lender evidence reasonably satisfactory to Lender that SHR Liable Party is in compliance with the requirement in Section 11(d) of the Guaranty;
(vii) Borrower shall have delivered an endorsement reflecting the extension of the Maturity Date for each of the policies comprising the Title Insurance Policy, provided that Borrower shall not be required to deliver such endorsements if: (A) such endorsement is not issued by the applicable title insurance companies at the time of the Maturity Date that would apply in the absence of the applicable Extension Period, or (B) the aggregate cost for such endorsements exceeds $5,000;
(viii) Borrower and Guarantor shall execute and deliver an agreement with Lender reasonably satisfactory to Lender which: (A) contains a certification from Borrower that all conditions precedent to the exercise of such Extension Option have been satisfied, (B) contains a certification from Borrower and Guarantor that no Event of Default exists under the Loan Documents, the Environmental Indemnity, or the Guaranty, (C) documents the extension of the Maturity Date, (D) includes Lender’s confirmation that, in reliance on Borrower’s and Guarantor’s certifications set forth therein, and the financial statements delivered to Lender by Borrower and Guarantor, the conditions precedent to the exercise of the Extension Option have been satisfied, and (E) does not require Borrower or Guarantor to make representations or warranties other than expressly set forth herein; and
(ix) Borrower shall have paid all actual out-of-pocket costs and expenses (including title insurance premiums, documentation costs, and reasonable attorneys’ fees) incurred by Lender in connection with the exercise by Borrower of such Extension Option.
(b) Lender shall determine the initial Interest Rate for any Extension Period as of approximately 11:00 A.M., London time, on the second Business Day prior to the then applicable Maturity Date. Lender shall notify Borrower of the initial Interest Rate and acceptable terms for the required interest rate protection instrument with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right extension prior to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions such applicable to the then-current Term of this Lease (except as provided otherwise herein)Maturity Date. Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with With respect to the Tenant Space for each any Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereofPeriod, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable Interest Rate will be reset by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of Lender effective the first (1st) day of the first (1st) month following the month during which the effective date of the extension occurs and effective the first (1st) day of the first (1st) month of each such subsequent year successive one (1) month period thereafter during the remaining term of the Loan (the “Extension Rate Reset Dates”). The Interest Rate will be reset as aforesaid to be the rate equal to the sum of (x) 2.95% plus (y) the one hundred three percent (103%) month LIBOR Rate as of approximately 11:00 A.M., London time, on the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect second Business Day prior to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine Rate Reset Date.
(9c) calendar months (and Notwithstanding the foregoing, so long as KSL Liable Parties are a Guarantor, Borrower shall not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right be entitled to exercise the applicable second Extension Option by delivering an Extension Option Exercise Notice unless Borrower shall first have demonstrated to Landlord within thirty (30) days after LandlordLender’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, eitherreasonable satisfaction that: (i) there shall be the term of each KSL Liable Party’s existence has been extended for an uncured Event additional period of Default by Tenant under this Leasenot less than six (6) months in connection with the Extension Option then exercised, or and (ii) that no scheduled expiration of any such Guarantor’s term shall occur prior to July 1, 2021. Evidence of the Lease foregoing shall include, without limitation, documentation effecting the exercise of the election to extend and a certificate from each KSL Liable Party confirming that such term was properly extended and that the extension is no longer subject to the objection of the LP Advisory Committee (in full force or effecteach case as referred to in Section 9.1(a) of such Guarantor’s limited partnership agreement as delivered to Lender prior to the Closing Date), and, in the event of any other scheduled expiration set forth in such Guarantor’s organizational documents at such time, such other evidence as Lender may reasonably require to establish that no scheduled expiration of any such Guarantor’s term shall occur prior to July 1, 2021. In connection with such evaluation, Borrower shall cause each KSL Liable Party to deliver to Lender an updated certified copy of each such Guarantor’s organizational documents, together with any other evidence required to satisfy the foregoing, prior to exercise by Borrower of the second Extension Option set forth herein.
Appears in 1 contract
Extension Options. 2.3.1 (a) Subject to and in accordance with the terms and conditions of this Section 2.338, Landlord hereby grants to Tenant shall have the following two (2) options (the “Extension OptionsOption(s)”) to extend the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested this Lease with respect to the omitted portions. Tenant’s right to extend entire Premises and only the Term entire Premises then being leased by Tenant for two (2) additional periods of five (5) years each (the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension “Option Terms.
2.3.2 Each Extension Term shall be upon all of ”), on the same terms, covenants and conditions as provided for in this Lease during the initial Term, except that Monthly Base Rent shall be established based upon the “fair market rental rate” for the Premises for each Option Term as defined and determined in accordance with the provisions applicable of this Section 38 below.
(b) An Extension Option must be exercised, if at all, by written notice (“Extension Notice”) delivered by Tenant to Landlord no earlier that three hundred sixty (360) days and no later than two hundred seventy (270) days prior to the thenLease expiration of the initial Lease term or the first Option Term, as applicable.
(c) The term “fair market rental rate” as used in this Addendum shall mean the annual amount per rentable square foot, which as of the date of determination is projected for and throughout the Option Term to be acceptable to a willing, non-current Term equity, renewal or non-renewal tenant of this Lease credit worthiness comparable to Tenant (except excluding sublease and assignment transactions), and a willing landlord of a Comparable Project in South Orange County (the “Comparison Area”), in an arm’s length transaction (what Landlord has accepted in recent transactions for the Building shall be considered for purposes of determining rent for the applicable Option Term), for space of one full floor or greater in size, comparable in quality and floor height as provided otherwise herein)the leased area at issue taking into account the age and layout of the existing improvements in the leased area at issue and taking into account items that professional real estate brokers customarily consider, including, but not limited to, rental rates, office space availability, tenant size, tenant improvement allowances, abatements, free rent, concessions, operating expenses and other additional rent charges and allowance, parking charges, and any other lease considerations, if any, then being charged or granted by Landlord or the lessors of such similar office buildings.
(d) Landlord shall provide written notice of Landlord’s determination of the fair market rental rate within ninety (90) days following the exercise by Tenant of the applicable Extension Option. Tenant shall have no further options ten (10) days (“Tenant’s Review Period”) after receipt of Landlord’s notice of the fair market rental rate within which to extend accept such fair market rental rate or to reasonably object thereto in writing. Failure of Tenant to so object to the Termfair market rental rate submitted by Landlord in writing within Tenant’s Review Period shall conclusively be deemed Tenant’s objection thereto. If Tenant reasonably objects to or is deemed to have objected to the fair market rental rate submitted by Landlord, except as expressly Landlord and Tenant will meet to present and discuss their individual determinations of the fair market rental rate for the Premises under the parameters set forth in this Section 2.338(c) above and shall diligently and in good faith attempt to negotiate a rental rate on the basis of such individual determinations. Such meeting shall occur no later than ten (10) business days after Tenant objects to the fair market rental submitted by Landlord. The Parties shall each provide the other with such supporting information and documentation as they deem appropriate. At such meeting if Landlord and Tenant are unable to agree upon the fair market rental rate, they shall each submit to the other their respective best and final offer as to the fair market rental rate. If Landlord and Tenant fail to reach agreement on such fair market rental rate within five (5) business days following such a meeting (the “Outside Agreement Date”), Tenant’s Option will be deemed null and void unless Tenant demands appraisal by written notice to Landlord within five (5) business days thereafter, in which event each party’s determination shall be submitted to appraisal in accordance with the provisions below.
2.3.3 The monthly Extension Term Base Rent payable with respect (i) Landlord and Tenant shall each appoint one M.A.I. member appraiser who has been active over the five (5) year period ending on the date of such appointment in the appraising of mid- to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged by Landlord for comparable high-rise office space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length of the Extension Term, the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term Comparison Area. Each such appraiser will be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord appointed within thirty (30) days after Landlord’s delivery the Outside Agreement Date.
(ii) The two (2) appraisers so appointed will within fifteen (15) days of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term appointment of the last appointed appraiser agree upon and appoint a third appraiser who shall terminate be qualified under the same criteria set forth herein above for qualification of the initial two (2) appraisers.
(iii) The determination of the appraisers shall be limited solely to the issue of whether Landlord’s or Tenant’s last proposed (as of the Outside Agreement Date) best and final fair market rental rate for the Premises is the closest to the actual new fair market rental rate for the Premises as determined by the appraisers, taking into account the requirements of paragraph (c) above and this paragraph (d) regarding same.
(iv) The three (3) appraisers shall within thirty (30) days of the appointment of the third appraiser reach a decision as to whether the Parties shall use Landlord’s or Tenant’s submitted best and final fair market rental rate, and shall be of no further force or effectnotify Landlord and Tenant thereof. During such thirty (30) day period, Landlord and Tenant may submit to the appraisers such information and documentation to support their respective positions as they shall deem reasonably relevant and Landlord and Tenant may each appear before the appraisers jointly to question and respond to questions from the appraisers.
2.3.6 (v) The decision of the majority of the three (3) appraisers shall be binding upon Landlord and Tenant and neither party shall have the right to reject the decision or to undo the exercise any Extension of the applicable Option, and such decision shall be used to establish the rental rate for the Option only with respect Term. The cost of each party’s appraiser shall be the responsibility of the party selecting such appraiser, and the cost of the third appraiser shall be shared equally by Landlord and Tenant.
(vi) If either Landlord or Tenant fails to the entire Tenant Space leased by Tenant at appoint an appraiser within the time that Tenant delivers period in paragraph (d)(i) herein above, the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant appraiser appointed by one of them shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on within thirty (30) days following the date on which the Extension Term is scheduled party failing to commenceappoint an appraiser could have last appointed such appraiser reach a decision based upon the same procedures as set forth above (i.e., either: (i) there by selecting either Landlord’s or Tenant’s submitted best and final fair market rental rate), notify Landlord and Tenant thereof and such appraiser’s decision shall be an uncured Event binding upon Landlord and Tenant.
(vii) If the two (2) appraisers fail to agree upon and appoint a third appraiser, either party, upon ten (10) days written notice to the other party, can apply to the American Arbitration Association to appoint a third appraiser meeting the qualifications set forth herein. The third appraiser, however, selected shall be a person who has not previously acted in any capacity for either party.
(viii) In the event that the new Monthly Base Rent is not established prior to end of Default by Tenant under this Lease, or (ii) the initial Term of the Lease or applicable Option Term, the Monthly Base Rent payable immediately prior to the commencement of the applicable Option Term shall be the average of Landlord and Tenant’s submitted best and final fair market rate offers. Notwithstanding the above, once the fair market rental is no longer determined in full force or effectaccordance with this section, the Parties shall settle any overpayment on the next Monthly Base Rent payment date falling not less than thirty (30) days after such determination and shall enter into an amendment to this Lease confirming the terms of the determination.
Appears in 1 contract
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the following options (“number of Extension Options”) Options specified in Item 6 of the Basic Lease Information to extend the Term of this Lease, for the Lease. First respective Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned Terms specified in such Item 6, upon Tenant having timely and properly exercised its right to extend the Term of the Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all of the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each the first year of the Extension Term shall be equal to one hundred percent (100%) of the then prevailing base rent then-current market rate then being charged by Landlord for comparable space in the Building taking into consideration the 3% annual base rent increase as set forth below, and by other landlords for new leasesextensions of leasehold interests for comparable space in comparable datacenter facilities located in the city in which the Building is located, if any, taking into consideration the quality, size, utility and location thereof, the length of the Extension Termextension term, the credit standing of Tenant, and any Tenant concessions being offered in the market for comparable extensions, the amenities provided to TenantTenant and the quality of the landlord as a first-class datacenter improvements operator (the “Fair Market Rent”); provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extendedsuch Extension Term.
2.3.4 With respect to the First Extension Option and the Second Extension Option, 2.3.2 Tenant may exercise each such Extension Option only by delivering an written notice (“Extension Option Interest Notice Notice”) to Landlord at least nine six (96) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.32.3 and, if Tenant timely exercised its Suite 409 Extension Option (as defined in the Second Amendment), Tenant must also specify whether Tenant is exercising the Extension Option as it relates to (a) the entire Tenant Space leased by Tenant at the time that Tenant delivers such notice, or (b) the entire Tenant Space leased by Tenant at the time that Tenant delivers such notice, but excluding Suite 409. Landlord shall thereafter deliver a written notice (the “Extension Option Landlord’s Notice Notice”) to TenantTenant advising Tenant of the Extension Term Base Rent for the Extension Term. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord right, within thirty (30) days after Landlord’s delivery of the Extension Option LandlordLicensor’s Notice to Tenant, specifying to exercise the Extension Option by delivering an Extension Option Exercise Notice to Landlord. Tenant’s Extension Option Exercise Notice must specify that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth in (ai) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenantii). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under this Lease, or (ii) the Lease is no longer in full force or effect.
Appears in 1 contract
Sources: Datacenter Lease (Endurance International Group Holdings, Inc.)
Extension Options. 2.3.1 Subject to and in accordance with the terms and conditions Provided no Event of this Section 2.3Default exists, Tenant shall have the following options (“Extension Options”) to extend the Term of the Lease. First Extension Term: Three (3) years (months 61-96) Second Extension Term: Three (3) years (months 97-132) [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Tenant’s right to extend the Term of the Lease with respect to any Extension Term shall be conditioned upon Tenant having timely and properly exercised its right to extend the Term of the may renew this Lease for all prior Extension Terms.
2.3.2 Each Extension Term shall be upon all two additional periods of five years each on the same terms, conditions and provisions applicable to the then-current Term of terms provided in this Lease (except as provided otherwise herein). Tenant shall have no further options to extend the Term, except as expressly set forth in this Section 2.3.
2.3.3 The monthly Extension Term Base Rent payable with respect to the Tenant Space for each Extension Term shall be equal to the then prevailing base rent then being charged below), by Landlord for comparable space in the Building for new leases, taking into consideration the quality, size, utility and location thereof, the length delivering written notice of the Extension Term, exercise thereof to Landlord not later than six months before the credit standing of Tenant, and the amenities provided to Tenant; provided, however, that in no event shall the monthly Base Rent payable by Tenant during the first year of any Extension Term be less than one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year expiration of the Term of in question. On or before the Lease; and provided further that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1st) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the last month of the immediately preceding year of the Term of the Lease, as extended.
2.3.4 With respect to the First Extension Option and the Second Extension Option, Tenant may exercise each such Extension Option only by delivering an Extension Option Interest Notice to Landlord at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to the then applicable expiration commencement date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3. Landlord shall thereafter deliver the Extension Option Landlord’s Notice to Tenant. Tenant shall thereafter have the right to exercise the applicable Extension Option by delivering an Extension Option Exercise Notice to Landlord within thirty (30) days after Landlord’s delivery of the Extension Option Landlord’s Notice to Tenant, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth (a) in this Section 2.3, and (b) in the Extension Option Landlord’s Notice.
2.3.5 In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all Extension Terms properly exercised by Tenant). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.
2.3.6 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Optionquestion, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to this Lease extending the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, Term on the date on which Tenant delivers an Extension Option Exercise Notice, or an Extension Option Interest Notice, as the case may be, or on the date on which the Extension Term is scheduled to commence, either: (i) there shall be an uncured Event of Default by Tenant under same terms provided in this Lease, except as follows:
(a) The Base Rent payable for each month during each such extended Term shall be the fair market rental rate (the “Fair Market Rental Rate”) for the time period such determination is being made for space in similar buildings in the vicinity of the Building of comparable age, quality and condition for space of equivalent quality, size, utility and location, with the length of the extended Term and the credit standing of Tenant to be taken into account;
(b) Tenant shall have no further renewal options (other than those set forth herein) unless expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their then-current condition, and Landlord shall not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other lessee inducements, unless any such allowances were included when determining the Fair Market Rental Rate. Within 30 days after receipt of Tenant’s written notice to renew, Landlord shall deliver to Tenant written notice of the Fair Market Rental Rate and shall advise Tenant of the required adjustment to Base Rent, if any, and the other terms and conditions offered. Tenant shall, within ten business days after receipt of Landlord’s notice, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Rate. If Tenant rejects Landlord’s determination of the Fair Market Rental Rate and timely notifies Landlord thereof, Tenant may, in its notice to Landlord, require that the determination of the Fair Market Rental Rate be made by brokers. In such event, within ten days thereafter, each party shall select a qualified commercial real estate broker with at least ten years experience in appraising property and buildings in the city or submarket in which the Premises are located. The two brokers shall give their opinion of prevailing rental rates within 20 days after their retention. In the event the opinions of the two brokers differ and, after good faith efforts over the succeeding 20 day period, they cannot mutually agree, the brokers shall immediately and jointly appoint a third broker with the qualifications specified above. This third broker shall immediately (within five days) choose either the determination of Landlord’s broker or Tenant’s broker and such choice of this third broker shall be final and binding on Landlord and Tenant. Each party shall pay its own costs for its real estate broker. Following the determination of the Fair Market Rental Rate by the brokers, the parties shall equally share the costs of any third broker. The parties shall immediately execute an amendment as set forth above. If Tenant fails to timely notify Landlord in writing that Tenant accepts or rejects Landlord’s determination of the Fair Market Rental Rate, time being of the essence with respect thereto, Tenant’s rights under this Exhibit shall terminate and Tenant shall have no right to renew this Lease. Tenant’s rights under this Section 31 shall terminate if (1) this Lease or Tenant’s right to possession of the Premises is terminated, or (ii2) Tenant fails to timely exercise its option under this Exhibit, time being of the Lease is no longer in full force essence with respect to Tenant’s exercise thereof. Tenant’s rights under this Section 31 are personal to Tenant and may only be exercised by Tenant or effecta Permitted Transferee.
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