Options to Extend. (a) Borrower shall have the option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion: (i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend). (ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing. (iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend. (iv) [intentionally omitted]. (v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument. (vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed. (vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed. (viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds. (ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender. (x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect. (b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion: (i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend). (ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing. (iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend. (iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed. (v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument. (vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed. (vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds. (viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Term Loan Agreement (Invesco Real Estate Income Trust Inc.)
Options to Extend. (a) Borrower Provided this Lease is in effect at the end of the Primary term and Tenant is not then in default hereunder, and provided that Tenant shall have given Landlord written notice at least six (6) months prior to the option expiration of the Primary Term of its election to extend (the “this Lease for a "First Option to Extend”) Extended Term", the term of this Lease shall be extended for a first five (5) year extended term commencing at the Loan from expiration of the Original Maturity Date Primary Term and ending at midnight on the last day of the twentieth Lease Year (for purposes of this Section, “Original Maturity Date”), to the "First Extended Maturity Date, upon satisfaction of each and every one of Term") on the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the same terms and conditions of this Agreement and herein set forth except that the other Loan Documents as modified and approved by Lender monthly rental shall remain unmodified and in full force and effectbe $6,970.68.
(b) Borrower shall have a second option to extend (Provided this Lease is in effect at the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as end of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value Term and Tenant is not adequate to meet the required Loan-to-Value Percentagethen in default hereunder, then Borrower and provided that Tenant shall either have given Landlord written notice at least six (i6) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal months prior to the expiration of said First Extended Term of its election to extend this Lease further for a "Second Extension Loan-to-Value Rebalance Amount The valuation date Extended Term" the term of such appraisal this Lease shall be within ninety extended for a second five (905) days year extended term commencing at the expiration of the First Extended Maturity Date. Any principal balance reduction Term and ending at midnight on the last day of the twenty fifth Lease Year (the "Second Extended Term") on the same terms and conditions herein set forth except that the monthly rental shall reduce Lender’s commitment by a like amount and may not be re-borrowed$8,016.28.
(vc) If required by LenderProvided this Lease is in effect at the end of the Second Extended Term and Tenant is not then in default hereunder, and provided that Tenant shall have given Landlord written notice at Borrower’s sole cost and expenseleast six (6) months prior to the expiration of said Second Extended Term of its election to extend this Lease further for a "Third Extended Term", the issuance by term of this Lease shall be extended for a third five (5) year extended term commencing at the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity expiration of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as Second Extended Term and ending at midnight on the last day of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount thirtieth Lease Year (the “Second Extension Debt Yield Shortfall Amount”"Third Extended Term") such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to on the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the same terms and conditions of this Agreement and herein set forth except that the other Loan Documents as modified and approved by Lender monthly rental shall remain unmodified and in full force and effectbe $9,218.72.
Appears in 1 contract
Sources: Ground Lease Agreement (South Alabama Bancorporation Inc /De/)
Options to Extend. (a) Borrower If this Lease be then in effect and if the Lessee be not in default under any of the terms, conditions and provisions herein required to be kept by the Lessee, then the Lessee shall have the option to extend this Lease for one (1) additional Three (3) Year term (the “First Option Extension Term”). Said option to Extendextend shall be exercised by giving Lessor notice of such election (the “Extension Notice”) at least One Hundred Eighty (180) Days prior to the expiration date of the initial term of this Lease. However, if Lessee gives to Lessor notice at least One Hundred Eighty (180) Days prior to the expiration date of the term of this Lease of its intent not to so extend the Loan from the Original Maturity Date (for purposes term of this SectionLease, “Original Maturity Date”), then this lease and the obligations herein contained shall terminate at the end of the initial term of this Lease. The Extension Term shall be according to the First Extended Maturity Datesame terms and conditions in this Lease except for Minimum Rent, upon satisfaction of each and every one of which shall be the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto fair market rental rate as Exhibit C not less than reasonably determined by Lessor within thirty (30) days and after receipt of Lessee’s timely delivered Extension Notice. Lessor shall endeavor to notify Lessee of the fair market rental rate for the Extension Term not more less than one hundred twenty fifty (120150) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As expiration of the Original Maturity DateInitial Term. Should Lessee object to Lessor’s determination of the fair market rental rate in writing within fifteen (15) days following Lessee’s receipt thereof, no Default the fair market rental rate for the Extension Term shall exist, be determined by the average of three (3) appraisers having at least ten (10) years experience with commercial appraisals. Each Lessor and to BorrowerLessee shall choose one appraiser and the two appraisers shall jointly choose a third. The costs for Lessor’s knowledge no event or condition which, and Lessee’s appraisers shall be paid by the party choosing such appraiser with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrumentthird appraiser being paid one-half (1/2) by Lessor and one-half (1/2) by Lessee “Term” as used in this Lease shall include the Initial Term and any properly exercised Extension Term.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower 2.4.1 Tenant shall have the option right to extend the Lease Term (the each an “First Option to Extend”) the term of the Loan from the Original Maturity Date for two (for purposes of this Section, 2) five-year periods (each an “Original Maturity DateExtended Term”), to provided Tenant is not in Default at the First time of exercise and at the time the Extended Maturity Date, upon satisfaction Term commences of each and every one any of the following terms, covenants and conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender of the Lease and has provided Landlord with written notice of Borrower’s request its intention to exercise extend the First Lease not later than twelve (12) months nor earlier than fifteen (15) months prior to the expiration of the Lease Term. The right to extend for the second Extended Term shall be of no force or effect if the Option to Extend in for the form attached hereto as Exhibit C first Extended Term has not less than been validly exercised. The Base Rent during each Extended Term shall be the fair market rent (defined below) for the Premises. Within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of Tenant’s exercise of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, Landlord shall notify Tenant in writing of Landlord’s determination of fair market rent and the Base Rent proposed during the applicable Extended Term. The Base Year for the applicable Extended Term shall be changed to the calendar year during which the applicable Extended Term commences (or the following calendar year if the Extended Term commences in the last quarter of a calendar year), and fair market rent shall take that change into account. If Tenant does not agree with Landlord’s proposal, Tenant shall so notify Landlord in writing within thirty (30) days after receipt of the proposal from Landlord. In the event that Landlord and Tenant are unable to agree in writing upon fair market rent within fifteen (15) days after Tenant shall have notified Landlord in writing that Tenant disagrees with such determination, then within five (5) days after the expiration of such 15-day period, the parties shall deliver to each other concurrently at a mutually agreeable place and time their respective final written estimates of fair market rent (including applicable annual increases). If each party’s estimate of fair market rent is the same, then the fair market rent shall equal such estimate. If both parties’ final estimates of fair market rent are within a ten percent (10%) range of the higher final estimate, then fair market rent shall equal the average of the two (2) final estimates. In every other case, fair market rent, based on the two (2) final estimates, shall be determined by arbitration as provided below in Section 2.4.2. Should the determination of fair market rent not be completed or agreed upon prior to the commencement of an Extended Term, Tenant shall, commencing on the first (1st) day of the applicable Extended Term, and continuing until the fair market rent is determined under Section 2.4.2, pay as Base Rent commencing on the first (1st) day of the applicable Extended Term, an amount equal to Landlord’s final determination of the fair market rent. If after the fair market rent is determined under Section 2.4.2, the fair market rent is less than the amount of Base Rent previously paid by Tenant for the Premises for the applicable Extended Term, Landlord shall pay the difference to Tenant within thirty (30) days after the date of such determination, with interest thereon calculated from the date of each payment of such Base Rent by Tenant at the rate of six percent (6%) per annum; and, if after determination of fair market rent, the fair market rent is more than the amount of Base Rent previously paid Tenant for the Premises for the applicable Extended Term, Tenant shall pay the difference to Landlord within thirty (30) days after the date of such determination, with interest thereon calculated from the date of each payment of such Base Rent by Tenant at the rate of six percent (6%) per annum.
2.4.2 Whenever under this Section 2.4 the determination of fair market rent is to be made by arbitration, such arbitration shall be conducted and determined in the City of San Francisco, solely in accordance with the provisions of this Section 2.4.2. Within fifteen (15) days after the parties have exchanged their estimates of fair market rent under Section 2.4.1, the parties shall attempt to agree upon a mutually-acceptable arbitrator meeting the criteria set forth below to determine fair market rent hereunder. If the parties are unable to agree on an arbitrator within such fifteen (15) day period, then either party, on behalf of both, may request appointment of such arbitrator by the then head official of the San Francisco office of the American Arbitration Association, and neither party shall raise any objections as to the appointment made by such official or as to such official’s full power and jurisdiction to entertain the application for and make the appointment. The arbitrator shall be a member of the Appraisal Institute (or its successor organization) with a then current senior designation of MAI (or then comparable designation) currently certified under the continuing education program, shall have at least ten (10) years’ experience in appraising major Class A commercial office buildings in the area from the Central San ▇▇▇▇▇▇ exit off Highway 101 and south or southern Marin County, California (“Comparable Buildings”), and shall not then be engaged or have been engaged by either Landlord or Tenant within the five (5) year period preceding their appointment hereunder. The arbitrator shall determine which of the two estimates submitted by the parties pursuant to Section 2.4.1 is closest to the correct result in the arbitrator’s opinion. The arbitrator shall have no power to select an alternative position or a decision different from that proposed by either party. The decision of the arbitrator shall be final and binding upon the parties, absent fraud or gross error. Upon failure, refusal or inability of an arbitrator to act, his or her successor shall be appointed in the same manner as provided for the original appointment. The party whose position is not chosen by the arbitrator shall bear the fees and expenses of the arbitrator. The attorneys’ fees and expenses of counsel and consultants to the respective parties shall be paid by the respective party engaging such counsel or consultant. The arbitrator shall render his or her decision in writing, with counterpart copies to each party, within thirty (30) days after his or her appointment. The arbitrator shall have no power to modify the provisions of this Lease. Landlord and Tenant agree to execute and deliver to each other a supplement to this Lease confirming the new Base Rent as determined by the method described in this Section 2.4.
2.4.3 For purposes of this Lease, “fair market rent” means the rent at which a landlord, under no compulsion to lease, would rent the Premises for the applicable Extended Term and a tenant, under no compulsion to lease, would rent the Premises for the applicable Extended Term. Fair market rent shall mean and refer to the rent being charged by Landlord and other landlords at the time of exercise of the Option to Extend for non-renewal, non-expansion, then current, comparable non-sublease, non-encumbered, non-equity space in the Building and Comparable Buildings. Fair market rent shall not necessarily be a monthly rent fixed during the applicable Extended Term, but may be subject to periodic adjustment. For purposes of determining fair market rent under this Lease, the following factors shall be taken into account: (i) that the Premises are then in their “as is, where is” condition as improved with any alterations thereto made by or on behalf of Tenant in their then condition, (ii) that Tenant could immediately occupy the Premises in such condition for the use as permitted by the terms and conditions of this Agreement Lease, and (iii) the other Loan Documents as modified Base Year for the space to which the fair market rent is to apply. In addition, (A) the determination of fair market rent shall exclude “down time” for releasing the Premises and approved during the period Landlord and Tenant are negotiating the fair market rent only the amount of an “in-house” brokerage commission on renewal shall be taken into account; (B) the determination of fair market rent shall take into account the then unamortized value of Building standard alterations to the Premises paid for by Lender Tenant but shall remain unmodified exclude any value attributable to above Building standard alterations in the Premises paid for by Tenant; and (C) the fair market rent shall include appropriate annual increases. In the event that the fair market rent is to be determined by arbitration in full force and effectaccordance with this Section 2.4, notwithstanding anything to the contrary contained in the preceding sentence, the arbitrator shall take into account all factors which an experienced arbitrator familiar with the Comparable Buildings would customarily take into account in determining the amount of fair market rent.
(b) Borrower shall have a second option 2.4.4 Tenant’s right to extend (the “Second Lease Term for an Extended Term is personal to the named Tenant and/or Affiliate Assignee under this Lease, and shall not inure to the benefit of any other assignee or subtenant. The Option to Extend”) Extend shall be void and of no further effect if at any time the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
named Tenant or an Affiliate Assignee under this Lease (i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met assigns this Lease or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety subleases more than fifty percent (9050%) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity rentable square feet of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as Premises for substantially the remainder of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedTerm.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Provided that no Event of Default shall have occurred and be continuing, Tenant shall have the option to extend the initial Term for two (2) successive periods of five (5) years each (the “"First Option to Extend”Extension Term" or the "Second Extension Term," as the case may be, and collectively, the "Extension Terms") upon the term same terms and conditions of this Lease in effect at the expiration of the Loan from initial Term or the Original Maturity Date First Extension Term, as the case may be, except that the Minimum Annual Rent (not including Additional Rent) for purposes the Extension Terms shall be adjusted as set forth below (in each case, the "Rent Adjustment"). Tenant, if it elects to exercise either option to extend, shall do so by delivering written notice of this Section, “Original Maturity Date”), such election to Landlord no later than one (1) year prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent initial Lease Term or the First Extension Term, as the case may be. Unless Landlord otherwise agrees in Lender’s discretion:writing, Tenant's rights under this Section shall terminate if Tenant fails to timely and properly exercise either option to extend.
(b) The Rent Adjustment for the First Extension Term shall be an amount equal to the product obtained by multiplying the Minimum Annual Rent for the tenth (10th) lease year (not including Additional Rent) by one hundred and fifteen percent (115%). The Rent Adjustment for the Second Extension Term shall be determined as follows: Within twenty (20) days after receipt of Tenant's notice to extend, Landlord shall send written notice to Tenant of the "prevailing rental rate" (based upon market rent for premises of comparable size, age, quality and tenant finish improvements as are found in the Earth City/Riverport area to a tenant of similar credit standing as Tenant, excluding free rent and other concessions) (the "Rental Criteria") and shall advise Tenant of Landlord's proposed Rent Adjustment, if any. If Tenant disagrees with Landlord's determination of prevailing rental rates (based on the Rental Criteria) and such proposed Rent Adjustment, Tenant may, but only within forty- five (45) days after receipt of Landlord's notice, require by written notice to Landlord that determination of the prevailing rental rate (based on the Rental Criteria) and determination of the Rent Adjustment be made by appraisers. In such event, within ten (10) days thereafter, each party shall select an MAI appraiser (i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend at least ten (10) years experience in appraising commercial property and buildings in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior Earth City/Riverport area comparable to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs Leased Premises, and expenses incurred by Lender in connection with such notice to extend).
(ii) As currently certified under the continuing education program of The Appraisal Institute, or its successor (any such appraiser meeting the foregoing requirements to be hereinafter called an "Appraiser"). The two Appraisers shall give their opinion of the Original Maturity Dateprevailing rental rates (based on the Rental Criteria) within twenty (20) days after their retention. In no event, no Default however, shall existthe Minimum Annual Rent in the Second Extension Term be less than the then Minimum Annual Rent payable by Tenant during the First Extension Term. In the event that the opinions of the two Appraisers differ and, after good faith efforts over the succeeding twenty (20) day period, the Appraisers cannot mutually agree, the Appraisers shall immediately and to Borrower’s knowledge no event or condition which, jointly appoint a third Appraiser with the giving of notice or qualifications specified above. The Minimum Annual Rent during the passage of time or both, would constitute a Default Second Extension Term shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance be established by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to third Appraiser based on the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%Rental Criteria; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, Rent Adjustment shall not be greater than the initial high appraisal or (ii) deliver to Lender be less than the initial low appraisal. Each party shall pay its own costs for its Appraiser and shall equally share the costs of any third Appraiser. The parties shall immediately confirm the Rental Adjustment for the Second Extension Term in writing. The Minimum Monthly Rent during each Extension Term shall be an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
one- twelfth (vii1/12) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, Minimum Annual Rent for each such Extension Term and shall be paid at the same time and in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit same manner as provided in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedSection 3.01.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. SECTION 2.1. Tenant shall have, and is hereby given, eight (a) Borrower shall have the option 8) separate options to extend the initial Term upon the terms, covenants, and provisions herein contained, for successive periods of five (the “First Option 5) years each. Each such option shall be exercisable by Tenant giving notice to Extend”) the term Landlord of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in LenderTenant’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request intention to exercise the First Option to Extend same provided Tenant is not then in the form attached hereto as Exhibit C default under this Lease, not less than twelve (12) months prior to the expiration date of the initial Term, or the expiration date of the then current extended Term, as the case may be; provided that, if Tenant shall fail to give any such notice within the aforesaid time limit, Tenant’s right to exercise its option shall nevertheless continue until thirty (30) days after Landlord shall have given Tenant notice of Landlord’s election to terminate such option and not more than one hundred twenty Tenant may exercise such option at any time until the expiration of said thirty (12030) days prior day period or the end of the then existing Term, whichever occurs first.
SECTION 2.2. It is the intention of the parties to avoid forfeiture of Tenant’s rights to extend the Original Maturity Date (which Term under any of the options set forth in Section 2.1 through inadvertent failure to give notice may be revoked by Borrower on or before of exercise thereof within the Original Maturity Date; provided Borrower time limits prescribed. Accordingly, if Tenant shall pay all costs and expenses incurred by Lender in connection with such fail to give notice to extend).
(ii) As Landlord of Tenant’s election to extend the Term for any of the Original Maturity Dateextended Terms and if Landlord shall fail to give notice to Tenant of Landlord’s election to terminate Tenant’s right to extend this Lease under the option applicable thereto, no Default then and so often as such event shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expenseoccur, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment Term shall be automatically extended from year to the Title Policy, insuring the priority and validity year upon all of the Security Instrument.
terms and conditions then in effect (vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal annual fixed rent shall be within ninety (90) days of at the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee rate that would have been in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second effect had Tenant exercised its option to extend (the “Second Option Term), subject to Extend”) Tenant’s right under such option to extend the term Term for the remainder of the Loan from extended Term covered thereby and to Landlord’s right to place the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which day limit on such option by a notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit manner provided in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedSection 2.1.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Tenant shall have the one (1) option to extend the Term of this Lease (the “First "Option to Extend”") for a period of five (5) years (the term "Extension Period"), subject to and on the terms set forth herein. Tenant may only exercise the Option to Extend with respect to the entire Premises. If Tenant shall desire to exercise the Option to Extend, it shall give Landlord a notice (the "Inquiry Notice") of such desire not later than fifteen (15) months prior to the expiration of the Loan from the Original Maturity Date (for purposes Initial Term of this SectionLease. Thereafter, “Original Maturity Date”)the Fair Market Rent (as defined in Subsection (c) below) for the Extension Period shall be determined in accordance with Subsection (d) below. After the Fair Market Rent has been so determined, Tenant shall exercise the Option to Extend by giving Landlord notice (the "Exercise Notice") of its election to do so not later than twelve (12) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:Initial Term of this Lease. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to the Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(b) Notwithstanding any contrary provision of this Lease, the Option to Extend and any exercise by Tenant thereof shall be void and of no force or effect unless on the dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for the Option to Extend and on the date of commencement of the Extension Period (i) Borrower this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant has not assigned or subleased (or agreed to assign or sublease) more than fifty percent (50%) of the rentable floor area then comprising the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during the Extension Period, except that the Annual Fixed Rent Rate during the Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term in accordance with written the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for the Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to the Option to Extend, Landlord shall give Tenant notice of Borrower’s request Landlord's determination of the Fair Market Rent for the Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord's determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant's agreement with or objection to Landlord's determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord's determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord's appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more than one hundred twenty (120) days prior day period, the two Arbitrators shall confer to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As compare their respective determinations of the date Fair Market Rent. If the First Extended Maturity Date, no Default shall exist, and difference between the amounts so determined by the two Arbitrators is less than or equal to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
ten percent (iii10%) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in lower of said amounts then the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance final determination of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount Fair Market Rent shall be equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date average of said amounts. If such appraisal difference between said amounts is greater than ten percent (10%0 , then the two arbitrators shall have ten (10) days thereafter to appoint a third Arbitrator (the "Third Arbitrator") , who shall be instructed to determine the Fair Market Rent for the Extension Period within ninety ten (9010) days after its appointment by selecting one of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance amounts determined by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to other two Arbitrators. Each party shall bear the Title Policy, insuring the priority and validity cost of the Security Instrument.
(vi) Borrower Arbitrator selected by such party. The cost for the Third Arbitrator, if any, shall have delivered evidence reasonably satisfactory be shared equally by Landlord and Tenant. In no event shall the rent for the Extension Period be less than the rent paid by Tenant under the Lease during the lease year prior to Lender that as commencement of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedTerm.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Curis Inc)
Options to Extend. Landlord hereby grants to Tenant (aindividually, "Extension Option" and collectively, "Extension Options") Borrower shall have the option four (4) -successive options to extend the Lease Term for a period of five (the “First 5) years each (individually, "Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this SectionTerm" and collectively, “Original Maturity Date”"Option Terms"). Each Extension Option must be exercised, to the First Extended Maturity Dateif at all, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with by written notice of Borrower’s request ("Option Notice") delivered by Tenant to exercise the First Option to Extend in the form attached hereto as Exhibit C Landlord not less than thirty (30) days and not more than one one-hundred twenty (120) days nor more than three hundred sixty (360) days prior to the Original Maturity Date (which notice end of the initial Lease Term or the then existing Option Term, as the case may be revoked by Borrower on ("Exercise Window"). Notwithstanding the foregoing, Tenant shall not be deemed to have waived its right to exercise an Extension Option unless Tenant fails to deliver such Option Notice within fifteen (15) days after Landlord's delivery to Tenant of written notice notifying Tenant that Landlord failed to receive such Option Notice during the applicable Exercise Window. Further, the Extension Options shall, at Landlord's election, become null and void and of no further force and effect if Tenant is in monetary default or before material non-monetary default after applicable notice and expiration of cure periods under this Lease at the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with time Tenant attempts to exercise such notice Extension Option or, following such exercise, prior to extend).
(ii) As the commencement of the Original Maturity Dateapplicable Option Term. Provided Tenant has properly and timely exercised the applicable Extension Option, no Default the Lease Term shall existbe extended for the period specified above, and to Borrower’s knowledge no event or condition whichall terms, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms covenants and conditions of this Agreement and the other Loan Documents as modified and approved by Lender Lease shall remain unmodified and in full force and effect.
effect except that Base Rent (bas defined in Article 3 below) Borrower payable by Tenant during each Option Term shall have a second option to extend (be adjusted as set forth in Section 7 of the “Second Option to Extend”) the Summary. The term of the Loan from the First Extended Maturity Datethis Lease, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revokedextended by any Option Term, by Borrower on or before is hereinafter collectively referred to as the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)"Lease Term.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect."
Appears in 1 contract
Sources: Lease (Aei Net Lease Income & Growth Fund Xix Limited Partnership)
Options to Extend. As consideration for the consent of Landlord herein set forth, Lease Paragraph 42 (a) Borrower shall have the option to extend (the “First Second Five Year Option to Extend”) and Paragraph 3 to Amendment No. I dated April 16, 1997 (“Third Five Year Option to Extend”) are hereby deleted in their entirety and shall be replaced with the term of following:
A. SECOND FIVE YEAR OPTION TO EXTEND: Landlord hereby grants to Tenant an option to extend this Lease Agreement (“Option to Extend” or the Loan from the Original Maturity Date “Option”) for an additional five years (for purposes of this Section, “Original Maturity DateSecond Extended Term”), to the First Extended Maturity Date, ) upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:terms and conditions:***
(i1) Borrower Tenant shall provide Lender with give Landlord written notice of BorrowerTenant’s request to exercise the First of this Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than at least one hundred twenty eighty (120180) days prior to the Original Maturity Date expiration of the Lease Term pursuant to Paragraph A hereof (not later than April 3, 2011), in which notice may event the Term of the Lease shall be revoked by Borrower on or before considered extended for an additional five (5) years, subject to the Original Maturity DateBasic Rent set forth below and with: (i) the Basic Rent to be determined pursuant to Paragraph 2) below; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As management fee and the terms and conditions subject to amendment by Landlord (Landlord, in its sole and absolute discretion, may, but is not required to, incorporate its then current Lease provisions that are standard in Landlord’s leases for comparable buildings as of the Original Maturity Date, no Default shall exist, date of Tenant’s exercise of its Option to Extend); and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower this Paragraph 2.A thereafter deleted. In the event that Tenant fails to timely exercise Tenant’s Option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and the Lease shall continue in full force and effect for the full remaining term hereof, absent this Paragraph 2.
2) In the event Tenant timely exercises Tenant’s Option to Extend as set forth herein, Landlord shall, within fifteen (15) days after receipt of Tenant’s exercise of the Option, advise Tenant of any changes in the management fee and the terms and conditions as referenced in Paragraph 2.A.1(ii) above) and the Basic Rent (which shall not be less than the Basic Rent for the fifth year of the current Term) required for the Extended Term of the Lease to make the Basic Rent for the Premises comparable to the then current market triple net basic rent for comparable properties either (i) then owned in whole or in part by the above mentioned Landlord or by members of its immediate family in the vicinity of the Premises or (ii) if not owned by Landlord or its family as stated herein, other third party properties in the vicinity of the Premises. Tenant shall have five (5) days after receipt from the Landlord of said new terms and conditions and Basic Rent in which to accept said new terms and conditions and Basic Rent and enter into written documentation confirming same. In the event Tenant fails to execute said written documentation confirming said new terms and conditions and Basic Rent for the Second Extended Term of Lease within said five (5) day period, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining term hereof absent of this Paragraph 2, with Landlord having no further responsibility or cause the execution of all documents reasonably required by Lender obligation to exercise the First Tenant with respect to Tenant’s Option to Extend.
(iv3) [intentionally omitted]It is agreed that if Tenant is at any time prior to exercising its Option to Extend in default of this Lease and has failed to cure the default in the time period allowed, this Paragraph 2 shall be null and void and Tenant will have no further rights under this Paragraph. It is further agreed that if Tenant has exercised its Option to Extend and is subsequently in default, and has failed to cure the default in the time period allowed by the Lease at any time prior to, or at the time the lease commences on the Second Extended Term, Landlord may at its sole and absolute discretion, cancel Tenant’s Option to Extend, and this Lease will continue in full force and effect for the full remaining Term hereof, absent of this Paragraph 2.
(v4) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title CompanyThe Option rights of Tenant under this Paragraph 2.A, and Lenderthe Second Extended Term thereunder, are granted for Tenant’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount personal benefit and may not be re-borrowedassigned or transferred by Tenant, except as provided for in Lease Paragraph 56 (“Permitted Assignments and Subleases”), either voluntarily or by operation of law, in any manner whatsoever.
(vii5) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming Notwithstanding anything to the satisfaction of Lender that the Loan-to-Value Percentagecontrary in this Paragraph, as of the Original Maturity Date, does not exceed fifty-nine percent this Option to Extend is automatically forfeited by Tenant (59.0%); provided, however, without notice from Landlord) in the event Tenant is, at any time during the Term of this Lease, in default of said Lease and if Tenant does not completely cure said default within five days for a monetary default and thirty days for a non-monetary default (or such fair market value longer time as permitted by cure in the Lease Agreement). In the event said Option to Extend is not adequate forfeited as stated herein, Tenant shall have no further Option to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedExtend this Lease.
B. THIRD FIVE (viii) On or before 5)-YEAR OPTION PERIOD: Provided Tenant has extended the Original Maturity DateLease for an additional five year period as set forth in Paragraph A above, Borrower shall pay Landlord hereby grants to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Tenant another Option to Extend, Extend the Lease Agreement upon the following terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender conditions;
1) Tenant shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with give Landlord written notice of BorrowerTenant’s request to exercise the Second of this Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than at least one hundred twenty eighty (120180) days prior to the First expiration of the Basic Term hereof (not later than April 3, 2016), in which event the Term of the Lease shall be considered extended for an additional five (5) years (“Third Extended Maturity Date Term”) subject to the Basic Rent set forth below and with: (which notice may i) the Basic Rent to be revoked, by Borrower on or before the First Extended Maturity Datedetermined pursuant to Paragraph 2) below; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As the management fee and the terms and conditions subject to amendment by Landlord (Landlord, in its sole and absolute discretion, may, but is not required to, incorporate its then current Lease provisions that are standard in Landlord’s leases for comparable buildings as of the date the First Extended Maturity Date, no Default shall exist, of Tenant’s exercise of its Option to Extend); and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower this Paragraph 2.B thereafter deleted. In the event that Tenant fails to timely exercise Tenant’s Option as set forth herein in writing, Tenant shall execute or cause have no further Option to Extend this Lease, and the execution Lease shall continue in full force and effect for the full remaining term hereof, absent this Paragraph 2.B.
2) In the event Tenant timely exercises Tenant’s Option to Extend as set forth herein, Landlord shall, within fifteen (15) days after receipt of all documents reasonably required by Lender to Tenant’s exercise of option, advise Tenant of any changes in the management fee and the terms and conditions as referenced in Paragraph 2.B.1 (ii) above and Basic Rent (which shall not be less than the Basic Rent for the fifth year of the Second Extended Term) required for the Third Extended Term of the Lease to make the Basic Rent for the Premises comparable to the then current market triple net basic rent for comparable properties either (i) then owned in whole or in part by the above mentioned Landlord or by members of its immediate family in the vicinity of the Premises or (ii) if not owned by Landlord or its family as stated herein, other third party properties in the vicinity of the Premises. Tenant shall have five (5) days after receipt from the Landlord of said new terms and conditions and Basic Rent in which to accept said new terms and conditions and Basic Rent and enter into written documentation confirming same. In the event Tenant fails to execute said written documentation confirming said new terms and conditions and Basic Rent for the Third Extended Term of Lease within said five (5) day period, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining term hereof absent of this Paragraph 2.B, with Landlord having no further responsibility or obligation to Tenant with respect to Tenant’s Option to Extend.
(iv3) Lender shall It is agreed that if Tenant is at any time prior to exercising its Option to Extend in default of this Lease and has failed to cure the default in the time period allowed, this Paragraph 2.B will be null and void and Tenant will have receivedno further rights under this Paragraph. It is further agreed that if Tenant has exercised its Option to Extend and is subsequently in default, and has failed to cure the default in the time period allowed by the Lease at Borrower’s sole expenseany time prior to, a written appraisal prepared in conformance with or at the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as scheduled Commencement Date of the First Third Extended Maturity DateTerm, does not exceed fifty-nine percent (59.0%); providedLandlord may at its sole and absolute discretion, howevercancel Tenant’s Option to Extend, and this Lease will continue in full force and effect for the event such fair market value is not adequate to meet full remaining Term hereof, absent of this Paragraph 2.B.
4) The Option rights of Tenant under this Paragraph 2.B and the required Loan-to-Value PercentageThird Extended Term thereunder, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lenderare granted for Tenant’s commitment by a like amount personal benefit and may not be re-borrowedassigned or transferred by Tenant, except as provided for in Lease Paragraph 56 (“Permitted Assignments and Subleases”), either voluntarily or by operation of law, in any manner whatsoever.
(v5) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment Notwithstanding anything to the Title Policycontrary in this Paragraph 2.B, insuring the priority and validity of the Security Instrument.
this Option to Extend is automatically forfeited by Tenant (viwithout notice from Landlord) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event Tenant is, at any time during the Term of this Lease, in default of said Lease and if Tenant does not completely cure said default within five days for a monetary default and thirty days for a non-monetary default (or such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan longer time as permitted by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee cure in the amount of 0.25% of total commitment amount of Lease Agreement). In the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second event said Option to ExtendExtend is forfeited as stated herein, the terms and conditions of Tenant shall have no further Option to Extend this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectLease.
Appears in 1 contract
Sources: Lease Agreement (Maxtor Corp)
Options to Extend. (aSubject to the provisions of Section 24(a)(ix) Borrower above and provided that no Default shall have occurred and be continuing at the option time this Option is exercised, Landlord hereby grants to Tenant three (3) successive options (collectively, the "OPTIONS", and each an "OPTION") to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes Lease Term of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction Lease for three (3) successive periods of five (5) consecutive Lease Years each. Tenant may exercise each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with Option only by giving Landlord written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C thereof not less than twelve (12) months, no more than eighteen (18) months prior to the expiration of the then running initial or extended Lease Term, as the case may be. The covenants, terms and conditions between Landlord and Tenant during each such extended term shall be the same as contained in this Lease for the initial Lease Term, except that Tenant shall have no further right to extend the Lease Term, and the Base Rent payable during each such extended term for which Tenant exercises this Option shall be adjusted for the first Lease Year of the applicable Option to equal the greater of:
a. one hundred and two percent (102%) of the Base Rent due for the preceding Lease Year; and
b. Fair Market Rental of the Leased Premises as of the beginning of the extended term ("OPTION DATE") as hereinafter set forth: '
i. Between the three hundred sixty-fifth (365th) and one hundred eightieth (180th) day prior to the Option Date, Landlord and Tenant shall attempt to agree by a written and signed addendum to this Lease on the Fair Market Rental to be payable during such extended term. If Landlord and Tenant are unable to agree on such Fair Market Rental or fail to execute the addendum by the one hundred eightieth (180th) day preceding the Option Date, then, within thirty (30) days thereafter Landlord and not more than one hundred twenty (120) days prior Tenant shall each select a Qualified Appraiser and use the appraisal mechanism set forth in Section 28 to determine the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Fair Market Rental.
(ii) As of . If for any reason the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that Fair Market Rental has not been determined as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; providedOption Date, however, Tenant shall continue to pay Base Rent to Landlord in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (of Landlord's lowest proposal during the “First Extension Debt Yield Shortfall Amount”negotiations set forth in Section 27(b)(i) such that said minimum Debt Yield is metabove, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to and, when the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report Fair Market Rental for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extendextended term is determined, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than Tenant within thirty (30) days and not more than one hundred twenty following Landlord's notice thereof, shall pay to Landlord the amount of any increase for each month during which Tenant paid a lower monthly installment of Base Rent, or, if Tenant has over paid Base Rent, Tenant shall receive a credit for such amounts against Base Rent next coming due.
c. Further, the Base Rent for each Lease Year during an Option after the first Lease Year during said Option shall be increased by two percent (1202%) days prior over the preceding Lease Year.
d. The exercise of all preceding Option(s) is a condition precedent to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extendexercise of any subsequent Option(s).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify e. Any references in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming this Lease to the satisfaction of Lender that Lease Term shall mean the Loan-to-Value Percentage, initial Lease Term as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate extended pursuant to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedthis Section.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower 2.3.1 Tenant shall have the option right to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes Term of this SectionLease for up to three (3) additional terms of five (5) years each (each, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction an "Extension Term") by delivery of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less Landlord no later than thirty ninety (30) days and not more than one hundred twenty (12090) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As expiration of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity penultimate year of the Security Instrument.
then-existing Term (vi) Borrower the "Extension Notice"). The Base Rent during the Extension Term, subject to periodic adjustment as provided in Section 3.1.3, below, shall have delivered evidence reasonably satisfactory to Lender that be the fair market rent for the Premises as of the Original Maturity Date date of the Property has achieved a Debt Yield Extension Notice (the "Extended Base Rent"). The determination of fair market rent for the Premises shall consider the rents and other terms and conditions at least 8.0%; provided, however, which comparable transactions are being consummated in projects comparable to the Premises in the event El Segundo, California area, which determination of comparable projects shall duly take into account such required minimum Debt Yield is not achievedprojects' age, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal design and construction relative to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount Premises, and may not be re-borrowed.
(vii) Lender shall have receivedthe presence or absence of any remaining Proposition XIII protection in accordance with Section 5.2.2, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREAbelow, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject such Proposition XIII protection may be affected by Tenant exercising its right to review and adjustment by Lender consistent with Lender’s standard practices), confirming extend the Term pursuant to this Section 2.3. Other than the satisfaction determination of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report Base Rent for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to ExtendExtension Term, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender Lease shall remain unmodified the same for the Extension Term and in full force and effect.
(b) Borrower Landlord shall have a second option no obligation to extend (grant Tenant any improvement allowances or concessions in connection with the “Second Option to Extend”) the term Extension Term. Tenant's Extension Notice shall set forth Tenant's opinion of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than Base Rent. Within thirty (30) days and not more than one hundred twenty (120) days prior to after Landlord's receipt of the First Extended Maturity Date (which notice may be revokedExtension Notice, by Borrower on or before the First Extended Maturity Date; provided Borrower Landlord shall pay all costs and expenses incurred by Lender in connection with such either deliver a notice to extend).
(ii) As Tenant either accepting Tenant's opinion of the date Extended Base Rent or objecting (an "Objection Notice") to Tenant's determination of the First Extended Maturity DateBase Rent. If Landlord delivers an Objection Notice, no Default then Landlord and Tenant shall exist, and to Borrower’s knowledge, no event or condition which, with negotiate in good faith the giving amount of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender Extended Base Rent. The right to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming Extension Terms are personal to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan originally named Tenant herein (the “Second Extension Loan-to-Value Rebalance Amount”"Original Tenant") and may only be exercised by such that said Loan-to-Value Percentage Original Tenant or a "Survivor" or an "Affiliate," as those terms are defined in Article 15 below, which Survivor or Affiliate is met or (ii) deliver to Lender an Acceptable Letter assignee of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount this Lease, and may not be re-borrowed.
(v) If required exercised by Lenderany other assignee, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, sublessee or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions transferee of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectLease.
Appears in 1 contract
Sources: Lease (Infonet Services Corp)
Options to Extend. So long as Cell Genesys, Inc. or a Permitted Assignee is the Tenant hereunder and occupies no less than 50% of the Rentable Square Feet of the Leased Premises, and subject to the condition set forth in clause (ab) Borrower below, Tenant shall have two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for a period of five (5) years from the expiration of the initial fifteen (15) year Lease Term (the "First Extension Period"), and the second (the "Second Extension Period") for a period of five (5) years from the expiration of the First Extension Period, subject to the following conditions: Each option to extend (shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than fifteen months nor less than twelve months prior to the “expiration of the initial Lease Term or the expiration of the First Option Extension Period, as applicable; Anything herein to Extend”the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Extension Period, as applicable, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant. In the event the applicable option is exercised in a timely fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes of this SectionFirst Extension Period or Second Extension Period, “Original Maturity Date”), to the First Extended Maturity Dateas applicable, upon satisfaction all of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents Base Monthly Rent for the First Extension Period or Second Extension Period, as modified and approved by Lender applicable shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (be the “Second Option to Extend”) "Fair Market Rent" for the term Leased Premises, with annual increases as determined as part of the Loan from the First Extended Maturity Dateprocess set forth below. In no event, however, shall any adjustment of Base Monthly Rent pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one this paragraph result in a decrease of the following conditions precedent in Lender’s discretion:
(i) Borrower Base Monthly Rent for the Leased Premises below the amount due from Tenant for the month immediately preceding the applicable extension period. No leasing commissions shall provide Lender be due or payable to any broker retained by Tenant with written notice of Borrower’s request regard to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than this Lease for any Extension Period. Within thirty (30) days after receipt of Tenant's notice of exercise, Landlord shall and not more than one hundred twenty Tenant shall each notify the other in writing of Landlord's estimate of the Fair Market Rent for the applicable extension period, based on the provisions of Paragraph 15.2 above. For purposes hereof, "Fair Market Rent" shall mean collectively, (1201) Base Monthly Rent for the first year of the applicable extension period, taking into account any capital improvement costs to be passed through as Additional Rent during such period and (2) the annual increases determined at the time Base Monthly Rent for the first year is determined. Within thirty (30) days prior to the First Extended Maturity Date (which notice may be revoked, after receipt by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As both parties of the date respective notices, Landlord and Tenant shall meet to attempt to agree on the First Extended Maturity DateFair Market Rent. In the event Landlord and Tenant cannot agree on the Fair Market Rent within such thirty (30) day period, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender Tenant shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject right either to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down accept Landlord's statement of Fair Market Rent as the outstanding principal balance of Base Monthly Rent for the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met applicable extension period; or (ii) deliver elect to Lender arbitrate Landlord's estimate of Fair Market Rent, such arbitration to be conducted pursuant to the provisions hereof; or (iii) rescind Tenant's notice of exercise. Failure on the part of Tenant to either require arbitration of Fair Market Rent or rescind its notice within such 30-day period shall constitute acceptance of the Base Monthly Rent for the applicable extension period as calculated by Landlord. If Tenant elects arbitration, the arbitration shall be concluded within 90 days after the date of Tenant's election, subject to extension for an Acceptable Letter of Credit additional 30-day period if a third arbitrator is required and does not act in a stated amount equal timely manner. To the extent that arbitration has not been completed prior to the Second Extension Loanexpiration of any preceding period for which Base Monthly Rent has been determined, Tenant shall pay Base Monthly Rent at the rate calculated by Landlord, with the potential for an adjustment to be made once Fair Market Rent is ultimately determined by arbitration. In the event of arbitration, the judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the City and County of San Francisco in accordance with the then prevailing rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by such rules shall be modified as follows: At the time Tenant's elects arbitration under Paragraph 15.3 above, Tenant shall send to Landlord a notice specifying therein the name and address of the person to act as the arbitrator on its behalf. The arbitrator shall be qualified as a real estate broker with no less than 7 years experience leasing of similar industrial, research and development, or office space in Northern San Mateo County. Failure on the part of Tenant to make a proper demand in a timely manner for such arbitration shall constitute a waiver of the right thereto. Within fifteen (15) days after the service of the demand for arbitration, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. In the event that two arbitrators are chosen pursuant to Paragraph 15.4(a) above, the arbitrators so chosen shall, within fifteen (15) days after the second arbitrator is appointed determine the Fair Market Rent. The arbitrators shall be instructed that they must choose a Fair Market Rent of Landlord's proposal or Tenant's proposal or a number in between the two. If the two arbitrators shall be unable to agree upon a determination of Fair Market Rent within such 15-to-Value Rebalance Amount The valuation date day period, they, themselves, shall appoint a third arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators pursuant to Paragraph 15.4(a). In the event they are unable to agree upon such appointment within seven days after expiration of such appraisal 15-day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon, within ninety a further period of fifteen (9015) days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Presiding Judge of the California Superior Court having jurisdiction over the County of San Mateo, acting in his private and not in his official capacity, and the other party shall not raise any question as to such Judge's full power and jurisdiction to entertain the application for and make the appointment. The three arbitrators shall decide the dispute if it has not previously been resolved by following the procedure set forth below. Where an issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators within 15 days of the First Extended Maturity Dateappointment of the third arbitrator in accordance with the following procedure. The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rent supported by the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rent. The third arbitrator shall have no right to propose a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and be final and binding upon the parties. In the event of a failure, refusal or inability of any arbitrator to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third arbitrator. The arbitrators shall decide the issue within fifteen (15) days after the appointment of the third arbitrator. Any principal balance reduction decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall reduce Lender’s commitment by a like amount be binding and may not conclusive upon the parties. Each party shall pay the fee and expenses of its respective arbitrator and both shall share the fee and expenses of the third arbitrator, if any, and the attorneys' fees and expenses of counsel for the respective parties and of witnesses shall be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance paid by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower respective party engaging such counsel or calling such witnesses. The arbitrators shall have delivered the right to consult experts and competent authorities to obtain factual information or evidence reasonably satisfactory pertaining to Lender that as a determination of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; providedFair Market Rent, however, but any such consultation shall be made in the event such required minimum Debt Yield is not achieved, then Borrower presence of both parties with full right on their part to cross-examine. The arbitrators shall (i) pay down render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions provisions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectLease.
Appears in 1 contract
Sources: Lease Agreement (Cell Genesys Inc)
Options to Extend. (a) Borrower 21.01 At the expiration of the Initial Term, if Tenant shall not then be in default of the Lease, then Tenant shall have the option to extend this Lease (the “"First Option to Extend”) Term"), upon the same terms and conditions excepting the provision for minimum rental, for one option term of five years, the Loan from First Option Term to commence on expiration of the Original Maturity Date Initial Term. The First Option Term shall be exercised by the Tenant first giving written notice to Landlord of Tenant's request to commence the procedure for determining fair market rent for the First Option Term, the written notice to be given not less than sixteen (for purposes of this Section, “Original Maturity Date”), 16) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:
Initial Term. The Basic Minimum Annual Rent for the First Option Term shall be the lesser of: (i) Borrower the Basic Minimum Annual Rent in effect immediately prior to the commencement of the First Option Term (adjusted to reflect the Expansion Space) annum increased by the percentage increase in the United States Department of Labor Bureau of Labor Statistics Consumer Price Index-All Urban Consumers-All Cities (1982-84 = 100) (the "CPI") between the dates of October 1, 1989 and October 1, 1995; or (ii) 90% of the fair market rent for the space on the commencement of the First Option Term. Provided further, that if at the time for the determination of the rental increase as herein provided the CPI is no longer published or issued, the Landlord shall provide Lender with written use such other index as is then generally recognized and accepted for similar determinations of purchasing power. Said fair market rent shall be determined as the fair market rent for net leases on a square foot basis for similar property located in the Town of Wilton, which comparable rates shall apply to new leases. Upon receipt of the notice to commence the procedure for determining fair market rent, Landlord and Tenant shall attempt to agree upon said fair market rent. In the event Landlord and Tenant cannot agree upon said fair market rent prior to fifteen months before the commencement of Borrower’s request the First Option Term, within fifteen days thereafter they each shall appoint a person experienced in commercial rental appraisals to act in their behalf in arriving at said market rent. If the two appraisers cannot arrive at an agreement at least thirteen months and fifteen days prior to the commencement of the First Option Term, then the representatives shall, within fifteen days thereafter, select and agree upon a third party who shall be the arbitrator. The two appraisers and the arbitrator shall then vote upon the fair market rent, and the majority vote being controlling. The figure upon which the vote is taken may be the figure of either appraiser or a figure between the figures of the two appraisers. The vote shall be made not later than thirteen months prior to the commencement of the First Option Term. Notwithstanding the foregoing, the Basic Minimum Annual Rent for the First Option Term, on a per square foot of Tenant's Net Rentable Area basis, shall in no event be less than the Basic Minimum Annual Rent in effect immediately preceding the commencement of the First Option Term. If Tenant then wishes to exercise the First Option Term, Tenant may only do so by giving written notice to Extend Landlord not later than twelve (12) months prior to the commencement of the First Option Term that Tenant is exercising the First Option Term. The Basic Minimum Rent shall be as determined as above, and all other terms and conditions of the extension will be exactly the same as the conditions set forth in this Lease including all provisions for additional rent and payments, but without, however, containing a further provision for extension or renewal except as set forth in paragraph 21.02.
21.02 At the form attached hereto as Exhibit C expiration of the preceding, validly exercised First Option Term, if this Lease shall then be in full force and effect and if Tenant shall not then be in default of the Lease, then Tenant shall have the option to extend this Lease (the "Second Option Term"), upon the same terms and conditions excepting the provision for minimum rental, for another option term of five years, the Second Option Term to commence on expiration of the First Option Term. The Second Option Term shall be exercised by the Tenant giving written notice to Landlord of Tenant's request to commence the procedure for determining fair market rent for the Second Option Term, the written notice to be given not less than thirty sixteen (3016) months prior to the expiration of the First Option Term. The Basic Minimum Annual Rent for the Second Option Term shall be 100% of the fair market rent for the space on the commencement of the Second Option Term. Said fair market rent shall be determined as the fair market rent for net leases on a square foot basis for similar property located in the Town of Wilton, which comparable rates shall apply to new leases. Upon receipt of the notice to commence the procedure for determining fair market rent, Landlord and Tenant shall attempt to agree upon said fair market rent. In the event Landlord and Tenant cannot agree upon said fair market rent prior to fifteen months before the commencement of the Second Option Term, within fifteen days thereafter they each shall appoint a person experienced in commercial rental appraisals to act in their behalf in arriving at said market rent. If the two appraisers cannot arrive at an agreement at least thirteen months and not more than one hundred twenty (120) fifteen days prior to the Original Maturity Date (commencement of the Second Option Term, then the representatives shall, within fifteen days thereafter, select and agree upon a third party who shall be the arbitrator. The two appraisers and the arbitrator shall then vote upon the fair market rent, and the majority vote being controlling. The figure upon which notice the vote is taken may be revoked by Borrower on the figure of either appraiser or before a figure between the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As figures of the Original Maturity Datetwo appraisers. The vote shall be made not later than thirteen months prior to the commencement of the Second Option Term. Notwithstanding the foregoing, no Default the Basic Minimum Annual Rent for the Second Option Term, on a per square foot of Tenant's Net Rentable Area basis, shall exist, and to Borrower’s knowledge in no event or condition which, with be less than the giving of notice or Basic Minimum Annual Rent in effect immediately preceding the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity commencement of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request Term. If Tenant then wishes to exercise the Second Option Term, Tenant may only do so by giving written notice to Extend in the form attached hereto as Exhibit C Landlord not less later than thirty twelve (3012) days and not more than one hundred twenty (120) days months prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As commencement of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender Term that Tenant is exercising the Second Option Term. The Basic Minimum Rent shall have receivedbe as determined as above, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the other terms and conditions of the extension will be exactly the same as the conditions set forth in this Agreement Lease including all provisions for additional rent and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectpayments, but without, however, containing a further provision for extension or renewal.
Appears in 1 contract
Options to Extend. Paragraph X of the Lease is amended to read as follows: Landlord hereby grants to Tenant three (a3) Borrower shall have the option five (5)-year options to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one Lease. On condition that Tenant is not then in default under any of the following terms and conditions precedent in Lender’s discretion:
of the Lease beyond any applicable notice and cure periods, Tenant may exercise each of the options to extend by giving Landlord at least one hundred eighty (i180) Borrower shall provide Lender with days prior written notice of Borrower’s request its exercise of the applicable option to exercise extend. All of the First Option terms and conditions of this Lease shall be in effect during each of the extended terms, except that the annual rental to Extend be paid by Tenant during the first year of the applicable extended term shall be adjusted to equal the fair market rental value of the Premises as of the first day of such extended term, as Landlord and Tenant shall agree as provided in the form attached hereto following paragraph. If Tenant has timely exercised its option to extend as Exhibit C set forth above, Landlord shall promptly give Tenant notice of Landlord's opinion of the fair market rental value (as defined below) applicable to the Premises during the first year of the extended term. Thereafter, Landlord and Tenant shall attempt to agree in good faith in writing on such fair market rental value. If Landlord and Tenant do not less than thirty (30) days and not more than agree in good faith on the fair market rental value of the Premises by the date which is one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As end of the Original Maturity Dateoriginal term, no Default or current renewal term, as applicable, then Landlord and Tenant shall existeach select, and within fifteen (15) days after such one hundred twentieth (120th) day, an appraiser (the "Appraisers") with a minimum of five (5) years experience appraising real property for commercial rental purposes in the Reno, Nevada area, to Borrower’s knowledge no event or condition which, with determine the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity fair market rental value of the Security Instrument.
Premises. Within fifteen (vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (9015) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extendappointment, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender Appraisers shall remain unmodified and in full force and effect.
(b) Borrower shall have mutually select a second option to extend third appraiser (the “Second Option to Extend”"Neutral Appraiser") who has the term of same minimum qualifications as the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each Appraisers and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property who has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.not
Appears in 1 contract
Sources: Commercial Lease (Intuit Inc)
Options to Extend. (a) Borrower Tenant shall have the option two successive options to extend (the “First Option to Extend”) Term for the term of Extension Terms set forth in Section 1.1, on the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount terms set forth below (the “First Extension Debt Yield Shortfall AmountOption” and the “Second Extension Option,” which shall collectively be referred to as the “Extension Option”) such that said minimum Debt Yield is met, or (ii) deliver ). The rental terms applicable with respect to Lender an Acceptable Letter of Credit in a stated amount each Extension Term shall be equal to ninety-five percent (95%) of the First Fair Market Rental Value of the Premises (as determined below). Tenant’s lease of the Premises during the Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment Terms shall, exclusive of the economic terms hereof that are superseded by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared such terms as established in conformance connection with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as determination of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Fair Market Rental Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter Premises, be on all of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease in effect on the other Loan Documents as modified and approved by Lender last day of the expiring Term, provided that in any event, Tenant shall remain unmodified and in full force and effecthave no option to extend the Term beyond the end of the second Extension Term.
(b) Borrower shall have a second option If Tenant wishes to extend (the “Second Option to Extend”) the term of the Loan from exercise the First Extended Maturity DateExtension Option, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower Tenant shall provide Lender with written give Landlord notice of Borrower’s request its election to so extend the Term (“Extension Exercise Notice’) not later than May 31, 2016. So long as Tenant has extended the Term to include the first Extension Term, then if Tenant wishes to exercise the Second Option Extension Option, Tenant shall give Landlord an Extension Exercise Notice not later than November 30, 2021. Failure by Tenant timely to Extend send an Extension Exercise Notice under this paragraph (b) shall constitute an irrevocable waiver of Tenant’s right to extend the Term.
(c) If Tenant shall request in the form attached hereto as Exhibit C not less writing, no sooner than thirty (30) days February 29, 2016 and not more no later than one hundred twenty (120) days prior March 31, 2016 with respect to the first Extension Term, and no sooner than August 31, 2021 and no later than September 30, 2021 with respect to the second Extension Term, that Landlord deliver its estimate of ninety-five percent (95%) of the Fair Market Rental Value of the Premises for what would be the upcoming Extension Term (assuming Tenant elects to exercise the Extension Option), then Landlord shall furnish Tenant with Landlord’s estimate as aforesaid, within thirty days after such request from Tenant.
(d) If Tenant timely exercises the First Extended Maturity Date Extension Option under paragraph (which notice may be revokedb) above, by Borrower but the parties do not agree on the rental terms pertaining to the Premises for the first Extension Term on or before June 30, 2016, or if Tenant timely exercises the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred Second Extension Option under paragraph (b) above, but the parties do not agree on the rental terms pertaining to the Premises for the second Extension Term on or before December 31, 2021, then either party may initiate the arbitration procedure set forth in Section 2.8 by Lender in connection with such giving notice to extend)the other. The failure by the parties to complete the process contemplated under Section 2.8, prior to commencement of the applicable Extension Term, shall not affect the continuation of the Term or the parties’ obligation to make any adjustments for any overpayments or underpayments for the Annual Base Rent due for the Extension Term promptly after the determination thereof is made.
(iie) As If Tenant shall exercise the Extension Option in accordance with this Section 2.4, the provisions of this Section shall be self-operative, but upon request by either party after determination of the date Annual Base Rent and Inducements (if any) for the First Extended Maturity Dateapplicable Extension Term, no Default the parties shall existexecute an agreement specifying the Annual Base Rent and Inducements, as defined in Section 2.8 (if any), for the applicable Extension Term, and to Borrower’s knowledge, no event or condition which, with acknowledge the giving extension of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingTerm.
(iiif) Borrower Notwithstanding any provision of this Section to the contrary, Tenant’s option to extend the Term shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have receivedbe void, at BorrowerLandlord’s sole expenseelection, a written appraisal prepared if Tenant is in conformance with the requirements of FIRREAdefault hereunder, as well as after any other applicable rules and/or regulations from any notice and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lendercure periods have expired, at Borrower’s sole cost and expense, the issuance by time Tenant elects to extend the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender Term or at the time the Term would expire but for attachment to the Title Policy, insuring the priority and validity of the Security Instrumentsuch extension.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Digitas Inc)
Options to Extend. (a) Borrower Provided no Event of Default under this Lease has ----------------- occurred and is continuing, Tenant shall have the right and option, exercisable by giving Landlord written notice at least nine (9) months prior to the expiration of the then current Lease Term, to extend the Lease Term for two (2) additional periods of five (5) years each (each, an "Extended Term") and, upon the giving of such notice, this Lease shall automatically be extended for such five (5) year periods and no further agreement of extension need be executed. In the event that Tenant fails to give such notice to Landlord as herein provided, this Lease shall automatically terminate at the end of the then current Lease Term and Tenant shall have no further right or option to extend this Lease. Each Extended Term shall be upon the same covenants, agreements, provisions, terms and conditions as during the original Lease Term except that the Annual Fixed Rent during each Extended Term shall equal the Fair Market Rent for the Leased Premises. The "Fair Market Rent" for the Leased Premises shall mean the rent for comparable space in a Class A mid-rise building in upper Bucks County for a new tenant entering into a new five (5) year lease and with the “First Option Operating Expense Allowance being adjusted to Extend”reflect the expense allowance used in calculating the Fair Market Rent. At least twelve (12) months prior to the term expiration of the Loan from then current Lease Term, Tenant may request Landlord to quote the Original Maturity Date (Fair Market Rent effective for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one first day of the following conditions precedent in Lender’s discretion:
(i) Borrower Extended Term. If Tenant objects thereto, Landlord and Tenant shall provide Lender with written notice negotiate for a period of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to determine whether the Original Maturity Date (which notice may Fair Market Rent can be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in agreed upon. In the event Landlord and Tenant cannot agree on the Fair Market Rent within such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days day period, Landlord and not more than one hundred twenty Tenant shall mutually select a real estate appraiser (120MAI or equal) knowledgeable of rents obtained in Class A mid-rise office buildings in upper Bucks County, Landlord shall submit to such appraiser the lowest Annual Fixed Rent which Landlord is willing to accept, together with any information with respect thereto that Landlord deems relevant and Tenant shall submit to such appraiser the highest Annual Fixed Rent which Tenant is willing to pay, together with any information with respect thereto that Tenant deems relevant, and the appraiser will then select which of Landlord's or Tenant's submissions most clearly reflect the Fair Market Rent for Class A mid-rise office buildings in upper Bucks County for new leases for a five (5) year term as aforesaid. The appraiser's decision shall be rendered within forty-five (45) days prior following his selection and to determine the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As Fair Market Rent of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, Leased Premises as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal aforesaid. Such determination shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount final, binding and may not be re-borrowedconclusive on Landlord and Tenant.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. 15.1 So long as Simplex Solutions, Inc. is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have one option to extend the term of this Lease with respect to the entirety of the Leased Premises, for a period of sixty (60) months from the expiration initial Lease Term (the "Extension Period"), subject to the following conditions:
(a) Borrower shall have the option to extend shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than two hundred seventy (270) days nor less than two hundred and ten days prior to the “First Option expiration of the Lease Term;
(b) Anything herein to Extend”) the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises the extension option or on the commencement date of the Extension Period, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option to extend upon notice to Tenant.
15.2 In the event the option is exercised in a timely fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes Extension Period upon all of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents as modified and approved by Lender Base Monthly Rent for each extension period shall remain unmodified and in full force and effect.
(b) Borrower be the "Fair Market Rent" for the Leased Premises. For purposes hereof, "Fair Market Rent" shall have a second option to extend (mean the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, Base Monthly Rent determined pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, process described below. In no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); providedevent, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance a decrease of the Loan (Base Monthly Rent for the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated Leased Premises below the amount equal to due from Tenant for the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days preceding portion of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedinitial Lease Term for which Base Monthly Rent had been fixed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Tenant shall have the option two (2) options to extend the Term of this Lease (the “First "Options to Extend") for successive periods of ten (10) years each (the "Extension Periods"), subject to and on the terms set forth herein. Tenant may only exercise the Options to Extend with respect to the entire Premises. If Tenant shall desire to exercise any Option to Extend”, it shall give Landlord a notice (the "Inquiry Notice") of such desire not later than fifteen (15) months prior to the term expiration of the Loan from the Original Maturity Date (for purposes Initial Term of this SectionLease or the preceding Extension Period, “Original Maturity Date”)as the case may be. Thereafter, the Fair Market Rent (as defined in Subsection (c) below) for the applicable Extension Period shall be determined in accordance with Subsection (d) below. After the applicable Fair Market Rent has been so determined, Tenant shall exercise each Option to Extend by giving Landlord notice (the "Exercise Notice") of its election to do so not later than twelve (12) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:Initial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(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 dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) Borrower this Lease is in full force and effect, (ii) there is no Event, of Default of Tenant under this Lease, and (iii) Tenant has not assigned or subleased (or agreed to assign or sublease) more than fifty percent (50%) of the rentable floor area of the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term or the preceding Extension Period, as the case may be, in accordance with written the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option to Extend, Landlord shall give Tenant notice of Borrower’s request Landlord's determination of the Fair Market Rent for the applicable Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord's determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant's agreement with or objection to Landlord's determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord's determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the applicable Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord's appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more day period, the two Arbitrators shall confer to compare their respective determinations of the Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than one hundred twenty or equal to ten percent (12010%) of the lower of said amounts then the final determination of the Fair Market Rent shall be equal to the average of said amounts. If such difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) days prior thereafter to appoint a third Arbitrator (the First Extended Maturity Date "Third Arbitrator"), who shall be instructed to determine the Fair Market Rent for the applicable Extension Period within ten (which notice may 10) days after its appointment by selecting one of the amounts determined by the other two Arbitrators. Each party shall bear the cost of the Arbitrator selected by such party. The cost for the Third Arbitrator, if any, shall be revoked, shared equally by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs Landlord and expenses incurred by Lender in connection with such notice to extend)Tenant.
(iif) As Regardless of the date manner in which the First Extended Maturity DateExtension Rent is determined, no Default the Annual Fixed Rent for each Extension Period shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (be subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, set forth in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (iSection 4.1(b) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedhereof.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (BioMed Realty Trust Inc)
Options to Extend. (a) Borrower Tenant shall have two (2) options to renew the option to extend Lease for all or a portion of the Premises (the “First Option Options to Extend”) for five (5) year lease terms (each, an “Extension Term”) at the term prevailing market rental rate at the time of commencement of the Loan from Extension Term for similar type properties in the Original Maturity Date general market area (for purposes of this Section, “Original Maturity DateFair Market Value”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower . Tenant shall provide Lender with written notice to Landlord of Borrower’s request its intention to exercise its options to renew the First Option to Extend in the form attached hereto as Exhibit C Lease not less than six (6) months prior to the expiration of the Lease Term or an Extension Term. In order to exercise Tenant’s options to extend, Tenant shall not have defaulted at any time during the initial lease term, or option period, beyond the stated cure date. For each Extension Term, the Base Year shall be adjusted to reflect the then current base year that is being offered to prospective tenants of the building, but in no event earlier that the year in which Tenant’s lease would expire. Within sixty (60) days of the beginning of any Extension Term, the Landlord shall provide an allowance of $7.00 per rentable square foot of the Premises for the refurbishment thereof. Landlord shall, within thirty (30) days and not more than one hundred twenty after receipt of Tenant’s renewal notice, send to Tenant, Landlord’s proposed fair market rental value for the Leased Premises based on comparable buildings, for comparable tenants (120"Landlord’s Rent") for the upcoming Renewal Term. Within ten (10) days prior thereafter, Tenant shall send to the Original Maturity Date (which Landlord a notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall stating either (i) pay down Tenant’s agreement with Landlord’s Rent, in which event Base Rent shall be said amount payable by Tenant throughout the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is metupcoming Renewal Term with any subsequent fair market annual increases, or (ii) deliver to Lender an Acceptable Letter Tenant’s evaluation of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such said prevailing fair market rental value is not adequate ("Tenant’s Rent") with any subsequent fair market annual increases. If Landlord and Tenant are unable to meet agree in good faith upon said prevailing fair market rental value within twenty (20) business days (the required Loan-to-Value Percentage“Good Faith Negotiation Period”) from the date of sending the notice described in (ii) above, then Borrower shall Tenant may elect to either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met rescind its renewal notice or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal consent to the First Extension Loan-to-Value Rebalance Amountmatter being determined by baseball arbitration pursuant to the paragraph below. The valuation date Disputes between Landlord and Tenant with respect to the prevailing fair market rental value of such appraisal the Leased Premises only shall be determined by baseball arbitration as provided in this paragraph. No other provision or issue arising under this Lease or any addendum hereto shall be subject to or determined by the provisions hereof. Landlord and Tenant shall each appoint a person as arbitrator who is a recognized authority on commercial office leasing in the City of Memphis, Tennessee and is not affiliated with either Landlord or Tenant in any way, within ninety ten (9010) business days after the expiration of the Good Faith Negotiation Period. Such appointment shall be signified in writing by each party to the other within such ten (10) business day period, and the arbitrators so appointed shall appoint within ten (10) days after the appointment of Tenant’s arbitrator and Landlord’s arbitrator a third arbitrator, who shall be a person who is a recognized authority on commercial office leasing in the City of Memphis, Tennessee and is not affiliated with Landlord or Tenant in any way. Said third arbitrator shall, after due consideration of all the relevant factors to be taken into account and any other information the arbitrator deems necessary, in good faith, make its own determination of the fair market rental value of the Premises within ten (10) days of his or her appointment (the Original Maturity Date“Arbitrator’s Rent”) and thereafter select either the Landlord’s Rent or the Tenant’s Rent, but no other, whichever is closest to the Arbitrator’s Rent (the “Final Rent Determination”), such determination to be made within twenty (20) days after the third arbitrator’s appointment. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor The Final Rent Determination decision shall be in compliance writing and in duplicate, one counterpart thereof to be delivered to each of the parties hereto. The Final Rent Determination shall be binding, final, and conclusive on the parties. The fees of the arbitrators and the expenses incident to the proceedings shall be borne equally between Landlord and Tenant. The fees of respective counsel engaged by the parties, and the fees of expert witnesses and other witnesses called by the parties, shall be paid by the respective party engaging such counsel or calling or engaging such witnesses. If Tenant fails to appoint an arbitrator in the manner and within the time specified above, then the prevailing fair market rental value of the Premises for the upcoming Renewal Term shall be the Landlord’s Rent. If Landlord fails to appoint an arbitrator in the manner and within the time specified above, then the prevailing fair market rental value for the upcoming Renewal Term shall be the Tenant’s Rent. If the parties’ arbitrators fail to appoint the third arbitrator within the time and in the manner prescribed herein, then Landlord and Tenant shall jointly and promptly apply to the local office of the American Arbitration Association for the appointment of the third arbitrator. As soon as reasonably practicable after the agreement to or determination of the Base Rent rate that will apply during any applicable Renewal Term, Tenant shall deliver to Landlord a written notice (“Renewal Base Rent Notice”) that memorializes the Base Rent rate that is expected to apply during any such Renewal Term, as determined in accordance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effecthereof.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Bioventus Inc.)
Options to Extend. (aA) Borrower shall have With regard to the option Metro Level Demised Premises, Lessor grants to Lessee three (3) consecutive options to extend (the “First Option to Extend”) the term of the Loan Lease, each option being for a period of five (5) years, as set forth below, provided Lessee exercises each such option as set forth below, and provided further that Lessee is not in default under the Lease beyond any applicable notice and cure period either on the date Lessee notifies Lessor of its intent to exercise the applicable option or at any time thereafter up to and including the date upon which the applicable extension period is to commence. The extension periods shall be from the Original Maturity Date May 1, 1997 through April 30, 2002 (for purposes of this Section"Metro Level Extension Period 2"); from May 1, “Original Maturity Date”2002 through April 30, 2007 ("Metro Level Extension Period 3"); and from May 1, 2007 through April 30, 2012 ("Metro Level Extension Period 4"). Each such five (5) year period may also be hereinafter called "Metro Level Extension Period." Lessee may exercise each such option to extend only by serving on Lessor, no later than fourteen (14) months, nor earlier than twenty (20) months, prior to the First Extended Maturity Date, upon satisfaction commencement of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with applicable Metro Level Extension Period, written notice of Borrower’s request Lessee's intent to exercise the First Option then applicable option to Extend extend. The Metro Level Monthly Rent for Metro Level Extension Period 3 and for Metro Level Extension Period 4 shall each be determined by the mutual agreement of Lessor and Lessee within sixty (60) days after the date Lessor receives Lessee's notice of its election to extend the term of the Lease for the applicable Metro Level Extension Period. The Metro Level Monthly Rent for each such Metro Level Extension Period shall be based upon the Market Rent (as hereafter defined) for the Metro Level Demised Premises. However, the Metro Level Monthly Rent for Metro Level Extension Period 3 shall be no less than the Metro Level Monthly Rent in effect during April 2002; and the Metro Level Monthly Rent for Metro Level Extension Period 4 shall be no less than the Metro Level Monthly Rent in effect during April 2007. If Lessor and Lessee are unable to agree within the applicable sixty (60) day period upon the Market Rent for the Metro Level Demised Premises in order to determine the Metro Level Monthly Rent for the applicable Metro Level Extension Period, then the Market Rent (upon which the Metro Level Monthly Rent for the applicable Metro Level Extension Period will be based) shall be determined by a board of three (3) licensed real estate brokers. Lessor and Lessee shall each appoint one (1) broker within ten (10) days after expiration of the sixty (60) day period, or sooner if mutually agreed upon. The two so appointed shall select a third within fifteen (15) days after they both have been appointed. Each broker on said board shall be licensed in the form attached hereto District of Columbia as Exhibit C not a Real Estate Broker, specializing in the field of commercial leasing in the central business district having no less than thirty ten (3010) years experience in such field, and recognized as ethical and reputable within his or her field. Each broker, within fifteen (15) days and not more than one hundred twenty (120) days prior to after the Original Maturity Date (which notice may third broker is selected, shall submit his or her determination of Market Rent. Market Rent shall be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As mean of the Original Maturity Date, two (2) closest rental rate determinations (or the middle of the three if there are no Default shall existtwo closest determinations), and to Borrower’s knowledge no event or condition which, with the giving of notice or Metro Level Monthly Rent for the passage of time or both, would constitute a Default applicable Metro Level Extension Period shall exist, and Borrower shall be based upon the Market Rent as so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance determined by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%brokers; provided, however, if the Market Rate determination produces a Metro Level Monthly Rent for Metro Level Extension Period 3 less than the Metro Level Monthly Rent in the event such required minimum Debt Yield is not achievedeffect for April 2002, then Borrower the Metro Level Monthly Rent for Metro Level Extension Period 3 shall either (i) pay down be the outstanding principal balance of Metro Level Monthly Rent in effect for April 2002; and provided further, that if the Loan by an amount (Market Rent determination produces a Metro Level Monthly Rent for Metro Level Extension Period 4 less than the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit Metro Level Monthly Rent in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentageeffect during April 2007, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Metro Level Monthly Rent for Metro Level Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal Period 4 shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedMetro Level Monthly Rent in effect for April 2007.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Sublessee shall have a series of options to extend the term of this Sublease for a period of one year each ("One Year Extensions"), and each such option for a One Year Extension may be exercised by Sublessee throughout the "Initial Lease Term" as defined in the Master Lease. Each such option to extend (the “First Option to Extend”) the Sublease term for a One Year Extension shall be exercised by Sublessee's delivery of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request thereof to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than Sublessor at least thirty (30) days prior to the expiration of the then current term of this Sublease, as the same may have been previously extended; provided that no default or event of default then exists under this Sublease on the part of Sublessee. In the event Sublessor elects to exercise its option to extend the term of the Master Lease pursuant to Paragraph 3 of the Addendum No. 1 to the Master Lease, then Sublessee's right to exercise additional options for One Year Extensions shall continue through the five year "extension term" provided in the Master Lease. Notwithstanding the foregoing, if Sublessor requires use of the Subleased Premises for Sublessor's own business operations (and not more than for assignment or sublease to another person or entity), Sublessor may cancel Sublessee's option to extend the Lease term beyond the first One Year Extension, provided that (i) Sublessor delivers written notice of such cancellation to Sublessee at least one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before expiration of the Original Maturity Date; provided Borrower shall pay all costs then current term of this Sublease, and expenses incurred by Lender in connection with such notice to extend).
(ii) As Sublessor occupies the Subleased Premises for its own business use within sixty days of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity expiration of the Security Instrument.
(vi) Borrower term of this Sublease and continues such use for a period of at least one year. Any such cancellation shall have delivered evidence reasonably satisfactory to Lender that be effective as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance expiration of the Loan by an amount (then current term of this Sublease and shall only apply to options to extend following the “First Extension Debt Yield Shortfall Amount”) such first One Year Extension; provided that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal if Sublessor cancels any extension term pursuant to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender terms of this Section 5.2, Sublessee shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second no further option to extend the term of this Sublease. Rent payable for each One Year Extension occurring during the Initial Lease Term of the Master Lease will be calculated as set forth in Paragraph 3.1 above. With respect to any One Year Extensions exercised by Sublessee during the five year "extended term" of the Master Lease, the Base Rent payable during each such One Year Extension shall be equal to Sublessee's Share (as defined below) of the “Second Option Basic Monthly Rent payable by Sublessor under the Master Lease during such one year period of the extended term. All other terms and provisions of this Sublease shall apply to Extend”) such One Year Extensions. If the "Initial Lease Term" (if Sublessor does not extend the term of the Loan from Master Lease) or the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend "extended term" described in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days Master Lease expires on a date prior to the First Extended Maturity Date (which notice may be revokedlast day of a calendar year, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender then any One Year Extension then in connection with effect upon such notice to extend).
(ii) As expiration of the date the First Extended Maturity Date, no Default Master Lease shall exist, and to Borrower’s knowledge, no event or condition which, terminate concurrently with the giving expiration of notice the term of the Master Lease. Nothing contained herein shall be construed in any way to obligate Sublessor to extend the terms of the Master Lease or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise any options under the Second Option to ExtendMaster Lease.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Sublease (Lightspan Partnership Inc)
Options to Extend. (a) Borrower Tenant shall have the option two (2) options to extend the Term of this Lease (the “First "Options to Extend") for successive periods of five (5) years each (the "Extension Periods"), subject to and on the terms set forth herein. Tenant may only exercise the Options to Extend with respect to the entire Premises. If Tenant shall desire to exercise any Option to Extend”, it shall give Landlord a notice (the "Inquiry Notice") of such desire not later than fifteen (15) months prior to the term expiration of the Loan from the Original Maturity Date (for purposes Initial Term of this SectionLease or the preceding Extension Period, “Original Maturity Date”)as the case may be. Thereafter, the Fair Market Rent (as defined in Subsection (c) below) for the applicable Extension Period shall be determined in accordance with Subsection (d) below. After the applicable Fair Market Rent has been so determined, Tenant shall exercise each Option to Extend by giving Landlord notice (the "Exercise Notice") of its election to do so not later than twelve (12) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:Initial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(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 dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) Borrower this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant has not assigned or subleased (or agreed to assign or sublease) more than fifty percent (50%) of the rentable floor area then comprising the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term or the preceding Extension, Period, as the case may be, in accordance with written the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option to Extend, Landlord shall give Tenant notice of Borrower’s request Landlord's determination of the Fair Market Rent for the applicable Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord's determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant's agreement with or objection to Landlord's determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to fee Landlord's determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the applicable Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord's appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more than one hundred twenty (120) days prior day period, the two Arbitrators shall confer to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As compare their respective determinations of the date Fair Market Rent. If the First Extended Maturity Date, no Default shall exist, and difference between the amounts so determined by the two Arbitrators is less than or equal to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
ten percent (iii10%) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Datelower of said amounts then the final determination, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount Fair Market Rent shall be equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date average of said amounts. If such appraisal difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) days thereafter to appoint a third Arbitrator (the "Third Arbitrator"), who shall be instructed to determine the Fair Market Rent for the applicable Extension Period within ninety ten (9010) days after its appointment by selecting one of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance amounts determined by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to other two Arbitrators. Each party shall bear the Title Policy, insuring the priority and validity cost of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of Arbitrator selected by such party. The cost for the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; providedThird Arbitrator, howeverif any, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified shared equally by this Second Option to Extend, the terms Landlord and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectTenant.
Appears in 1 contract
Sources: Lease (BioMed Realty Trust Inc)
Options to Extend. (a) Borrower Subject to satisfaction of the conditions precedent set forth below, Tenant shall have the option two (2) options to extend the Term (the each an “First Option to ExtendExtension Option”) the term for a period of the Loan from the Original Maturity Date sixty (for purposes of this Section60) months each (each, an “Original Maturity DateExtension Term”), on the following terms and conditions:
23.1 Each Extension Option shall be subject to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionprecedent, which are solely for the benefit of, and may be waived unilaterally by, Landlord:
(ia) Borrower The applicable Extension Option shall provide Lender with be exercised by written notice of Borrower’s request (the “Option Notice”) delivered by Tenant to exercise the First Option to Extend in the form attached hereto as Exhibit C Landlord not less earlier than thirty fifteen (3015) days months and not more later than one hundred twenty twelve (12012) days months prior to the Original Maturity Date end of the initial Term or first (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).1st) Extension Term, as applicable;
(iib) As of the Original Maturity Date, no Default Tenant shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify be in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield occupancy of at least 8.0eighty percent (80%) of the area of the Premises directly or through a wholly owned subsidiary (at any tier), and not through an unaffiliated assignee or sublessee; and
(c) The Lease shall be in effect and Tenant shall not be in default of any material provision thereof both on the day such written notice is delivered to Landlord and on the last day of the Term; provided, however, if Tenant is in default but the cure period has not run, this condition shall be deemed satisfied if Tenant cures the default within the applicable cure period.
23.2 In the event the Term shall be extended following exercise by Tenant of an Extension Option, then all of the terms, covenants and conditions of this Lease shall remain in full force and effect during the applicable Extension Term, except that the initial monthly Base Rent (including subsequent annual increases in Base Rent) during the applicable Extension Term shall be adjusted to the then effective market rate as reasonably determined by Landlord for new leases for comparable space in the event such required minimum Debt Yield is not achievedCarlsbad area (and taking into account (1) rental abatement concessions reflecting free rent and/or no rent, then Borrower shall either (i2) pay down the outstanding principal balance of the Loan by an amount tenant improvement allowances, if any, and (the “First Extension Debt Yield Shortfall Amount”3) such that said minimum Debt Yield is metall other monetary and non- monetary concessions, or (iiif any, being granted to similar renewal tenants in connection with comparable space) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, that in no event shall the Base Rent payable for any Lease Year be less than the Base Rent payable for the immediately preceding Lease Year. Within ten (10) days after ▇▇▇▇▇▇▇▇’s receipt of the applicable Option Notice, Landlord shall notify Tenant in writing of Landlord’s determination of the market rate for the Premises for the applicable Extension Term. In the event such fair market value is not adequate to meet ▇▇▇▇▇▇ rejects ▇▇▇▇▇▇▇▇’s determination and so notifies Landlord in writing within ten (10) days after receipt of the required Loan-to-Value Percentagedetermination, then Borrower Landlord and Tenant shall either attempt to agree in good faith upon the market rate for the Premises. If Landlord and Tenant fail to reach agreement within twenty (i20) pay down the outstanding principal balance days following ▇▇▇▇▇▇▇▇’s receipt of such rejection notice, then Tenant’s exercise of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit Option in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal question shall be within ninety (90) days of rescinded, the Original Maturity Date. Any principal balance reduction Term shall reduce Lender’s commitment by a like amount and may not be re-borrowedextended for the applicable Option Term and any remaining Extension Options shall be null and void.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee 23.3 The increase in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor Base Rent provided by this Section shall be in compliance with the Guarantor Financial Covenants. Except addition to any increase in Operating Expenses as modified by this First Option to Extend, the terms and conditions described in Section 4.2 of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectLease.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Provided that Tenant is not then in default either at the time Tenant delivers the written notice required by this section or at the time of commencement of an extension term, Tenant shall have the option to extend the term of this Lease for up to fifteen years in three separate and additional terms of five years each (provided that Tenant may, if it chooses, combine the “First Option to Extend”) first two extension options and extend the term of the Loan from the Original Maturity Date (Lease for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, ten years upon satisfaction of each and every one delivery of the following requisite notice) under the same terms and conditions precedent as set forth in Lender’s discretion:
(i) Borrower this Lease except that the Base Rent shall provide Lender with be adjusted as hereafter provided. Tenant shall exercise any of its options to extend this Lease by delivering written notice of Borrower’s request such exercise to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than Landlord at least one hundred twenty (120) days year prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As expiration of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event original or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity extended term of the Security Instrument.
(vi) Borrower Lease, as the case may be. The Base Rent for the first year of each extension term shall have delivered evidence reasonably satisfactory to Lender that as be 95% of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either Fair Market Rental (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%hereafter determined); provided, however, that in no event shall the event such fair market value is not adequate to meet Base Rent for the required Loan-to-Value Percentage, then Borrower shall either (i) pay down Premises for the outstanding principal balance first year of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall each extension term be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25less than 100% of the total commitment amount average per rentable square foot of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report Base Component of the Base Rent for the Property in form reasonably acceptable to Lender.
(x) Guarantor entire Premises during the immediately preceding year nor more than 102.5% of the average per rentable square foot of the Base Component of the Base Rent for the entire Premises during the immediately preceding year. Thereafter, the Base Rent for the Premises for each year of the extension term shall increase by 2 1/2% per year. For each five year extension exercised by Tenant, Tenant shall receive a Tenant improvement allowance of $2.00 per rentable square foot of the Premises, which allowance shall be in compliance with credited against the Guarantor Financial Covenantsmonthly rental payments next due and payable by Tenant under the Lease until the full amount has been credited to Tenant. Except as modified by this First Option If Tenant elects to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second exercise its first option to extend (the “Second Option Lease for a period of ten years rather than five years, then the tenant improvement allowance to Extend”) Tenant shall be $4.00 per rentable square foot rather that $2.00 per rentable square foot. For purposes of this section, Fair Market Rental shall mean the term base rent for comparable space in the Project's market area. The determination of Fair Market Rental shall take into account the tenant improvement allowance offered to Tenant and all other relevant factors. If Landlord and Tenant are unable to agree on the Fair Market Rental within thirty days after Tenant's exercise of each of the Loan from options to extend, then the First Extended Maturity DateFair Market Rental shall be determined by appraisal. Landlord and Tenant shall each designate by written notice within ten days after the expiration of said thirty day period, the name of a qualified appraiser who shall have at least five years experience relative to office space in said market area. Each of the Second Extended Maturity Dateappraisers shall submit to Landlord and Tenant within thirty days after his or her appointment, upon satisfaction a written determination of each the Fair Market Rental for the applicable option period. If both of the appraisers' determinations are within the minimum and every maximum Base Rent amounts previously set forth in this section, then the Fair Market Rental shall be the average of the two appraisals. If only one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days appraiser's determinations is within such minimum and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentagemaximum Base Rent amounts, then Borrower the Fair Market Rental shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount be equal to such determination. If neither appraiser's determinations is within the Second Extension Loan-to-Value Rebalance Amount The valuation date minimum and maximum Base Rent amounts, then the Fair Market Rental shall be the average of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount minimum and may not be re-borrowedmaximum Base Rent amounts.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Office Lease (Metavante Corp)
Options to Extend. (aA) Borrower Provided Tenant is not in default beyond the expiration of any applicable notice and grace period either at the time Tenant exercises the option or as of the commencement of the Option Period, Tenant shall have the option right to extend (the “First Option to Extend”) the term of this Lease for the Loan Option Periods from the Original Maturity Date date upon which the term would otherwise expire upon the same terms and conditions as those herein specified. If Tenant elects to exercise its option for any Option Period, it shall, subject to the provisions of paragraph (for purposes B) of this SectionArticle, “Original Maturity Date”), to do so by giving Landlord notice of such election at least 12 months before the First Extended Maturity Date, upon satisfaction of each and every one beginning of the following conditions precedent in Lender’s discretion:
(i) Borrower Option Period for which the term hereof is to be extended by the exercise of such option. If Tenant gives such notice, the term of this Lease shall provide Lender with written notice be automatically extended for the Option Period covered by the option so exercised without execution of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on an extension or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)renewal lease.
(iiB) As It is the intention of the Original Maturity Date, no Default shall exist, Landlord and Tenant to Borrower’s knowledge no event or condition which, with the giving avoid forfeiture of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option Tenant's right to extend (the “Second Option to Extend”) the term of this Lease under any of the Loan from extension options set forth in paragraph (A) of this Article through failure to give notice of exercise thereof within the First Extended Maturity Datetime prescribed. Accordingly, if Tenant shall fail to give notice of exercise of any such option within the time prescribed in paragraph (A) of this Article, then the time to give such notice shall be deemed extended for an additional period commencing on the last day on which such notice by Tenant may be timely given pursuant to paragraph (A) above and ending 10 business days after the date Landlord gives Tenant notice of Tenant's failure to exercise such option within the time prescribed. If Tenant exercises any such option after the date prescribed in paragraph (A) above, but within the extended time permitted above, the extended term to which such option relates shall commence, or shall be deemed to have commenced, at the time it would have commenced if such notice had been given within the time prescribed in paragraph (A) above; otherwise, any period during which Tenant remains in possession after the expiration of the term hereby created, or as extended by the exercise of a previous option or options, shall be subject to the Second Extended Maturity Date, upon satisfaction of each and every one provisions of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice Article captioned "Continued Possession of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Tenant.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing".
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Excel Legacy Corp)
Options to Extend. (a) Borrower Tenant with the prior written consent of Landlord, which consent shall have not be unreasonably withheld, may extend the option original Term of this Lease, subject to extend all the provisions of this Lease including but not limited to provisions for increases in Rent, for one (1) additional period of ten (10) years, followed by six (6) additional periods of five (5) years each, each such period commencing upon the “First Option to Extend”) expiration of the term of the Loan from the Original Maturity Date (for purposes of this Sectionimmediately preceding period. With respect to each such extended term, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower Tenant shall provide Lender with give Landlord written notice (in the manner prescribed by Section 18.6) of Borrower’s request Tenant's intention to exercise the First Option to Extend in the form attached hereto as Exhibit C said option not less more than thirty (30) days months and not more less than one hundred twenty four (12024) months before the end of the Term then in effect. Within sixty (60) days prior after Landlord's receipt of said notice, Landlord shall advise Tenant in writing whether Landlord consents or does not consent to such extended term. If Landlord does not consent to such extended term, Landlord's written notice shall state the reasons for withholding consent. Landlord's failure to respond within sixty (60) days after its receipt of Tenant's notice of intention to exercise its option shall be deemed to be a grant of consent. If Landlord does not consent to such extended term, then such refusal shall be considered to be Landlord's notice to terminate this Lease as provided below at Section 4.5, Landlord's Special Right of Termination, and Tenant may exercise those rights provided to Tenant by said Section 4.5. After the valid exercise of any option to extend, all references in this Lease to the Original Maturity Date (which notice may Term hereof shall be revoked by Borrower on or before considered to mean the Original Maturity Date; provided Borrower shall pay Term as extended, and all costs and expenses incurred by Lender in connection with such notice references to extend).
(ii) As the end of the Original Maturity Date, no Default Term shall exist, and be considered to Borrower’s knowledge no event or condition which, with mean the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity end of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that Term as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectextended.
(b) Borrower shall have a second Tenant's right to exercise the option to extend (the “Second Option for each period is subject to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
precedent: (i) Borrower this Lease shall provide Lender with written be in effect at the time notice of Borrower’s request exercise of an option to exercise extend is given and on the Second Option to Extend in last day of the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days Term of the Lease prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Dateits extension; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As Tenant shall not be in Default under any provision of this Lease at the time notice of exercise of the date the First Extended Maturity Date, no option is given nor shall an Uncured Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, exist as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance last day of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver Term prior to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedits extension.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Ground Sublease (Minimed Inc)
Options to Extend. (a) Borrower Subject to the terms of this Paragraph 1 and Paragraph 3 below, entitled “Options,” Landlord hereby grants to Tenant the option (each, an “Extension Option” and collectively, the “Extension Options”) to extend the Term of the Lease with respect to the entire Premises for up to [***] additional periods of [***] years each (each, an “Option Term” and collectively, the “Option Terms”), on the same terms, covenants and conditions as provided for in the Lease during the immediately preceding Term, except that (i) Tenant shall have no further extension rights (other than as expressly set forth herein), (ii) Basic Rent shall be established based on [***] of the option “fair market rental rate” for the Premises for the applicable Option Term as defined and determined in accordance with the provisions of this Paragraph 1, and (iii) all other economic terms such as, without limitation, parking charges, if any, etc., shall be established based on the “fair market rental rate” for the Premises for the Option Term as defined and determined in accordance with the provisions of this Paragraph 1.
(b) Each Extension Option must be exercised, if at all, by written notice (“Extension Notice”) delivered by Tenant to extend Landlord no earlier than the date which is four hundred twenty (420) days, and no later than the date which is three hundred sixty (360) days, prior to the expiration of the immediately preceding Term of the Lease.
(c) The term “fair market rental rate” as used in this Rider 1 shall mean the annual amount per square foot, projected during the relevant period, that a willing, comparable, non-equity, renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, comparable, institutional landlord of a comparable Class “A” quality industrial building containing similar parking ratios (e.g., up to 2.5 spaces per 1,000 square feet) and located in the greater Alameda County, San ▇▇▇▇ and Milpitas areas (collectively, the “Comparison Area”) would accept, at arm’s length (what Landlord is accepting in current transactions for the Building may be considered), for space comparable in size and quality as the leased area at issue taking into account the age, quality 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, industrial space availability, tenant size, tenant improvement allowances, operating expenses and allowance, parking charges, and any other economic matters then being charged by Landlord or lessors of such similar industrial buildings but shall not take into account any improvements or alterations paid for at the sole cost and expense of Tenant. Notwithstanding anything herein to the contrary, in no event will Basic Rent decrease from that payable in the last year of the immediately previous Lease Term as a result of the fair market rental rate determination provided for in this Paragraph 1. *** Information has been omitted pursuant to a request for confidential treatment which has been filed separately with the Securities and Exchange Commission.
(d) Landlord’s determination of fair market rental rate shall be delivered to Tenant in writing not later than sixty (60) days following Landlord’s receipt of Tenant’s Extension Notice. Tenant will have thirty (30) days (“Tenant’s Review Period”) after receipt of Landlord’s notice of the fair market rental rate within which to accept such fair market rental rate or to object thereto in writing. Tenant’s failure to object to the fair market rental rate submitted by Landlord in writing within Tenant’s Review Period will conclusively be deemed Tenant’s approval and acceptance thereof. If Tenant objects to the fair market rental rate submitted by Landlord within Tenant’s Review Period, then Landlord and Tenant will attempt in good faith to agree upon such fair market rental rate using their best good faith efforts. If Landlord and Tenant fail to reach agreement on such fair market rental rate within fifteen (15) days following the expiration of Tenant’s Review Period (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Outside Agreement Date”), then each party’s determination will be submitted to appraisal in accordance with the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:provisions below.
(i) Borrower Landlord and Tenant shall provide Lender with written notice each appoint one independent, unaffiliated real estate broker (referred to herein as an “appraiser” even though only a broker) who has been active over the five (5) year period ending on the date of Borrower’s request to exercise the First Option to Extend such appointment in the form attached hereto leasing of comparable industrial properties in the Comparison Area. Each such appraiser will be appointed within thirty (30) days after the Outside Agreement Date.
(ii) The two (2) appraisers so appointed will within fifteen (15) days of the date of the appointment of the last appointed appraiser agree upon and appoint a third appraiser who shall be qualified under the same criteria set forth herein above for qualification of the initial two (2) appraisers.
(iii) The determination of the appraisers shall be limited solely to the issue of whether Landlord’s or Tenant’s last proposed (as Exhibit C of the Outside Agreement Date) new Basic Rent for the Premises is the closest to the actual new Basic Rent for the Premises as determined by the appraisers, taking into account the requirements of Subparagraph 1(c) and this Subparagraph 1(e) 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 new Basic Rent, and shall notify Landlord and Tenant thereof.
(v) The decision of the majority of the three (3) appraisers shall be binding upon Landlord and Tenant and neither party will have the right to reject the determination or undo the exercise of the Extension Option. The cost of each party’s appraiser shall be the responsibility of the party selecting such appraiser, and the cost of the third appraiser (or arbitration, if necessary) shall be shared equally by Landlord and Tenant.
(vi) If either Landlord or Tenant fails to appoint an appraiser within the time period in Subparagraph 1(e)(i) herein above, the appraiser appointed by one of them shall reach a decision, notify Landlord and Tenant thereof and such appraiser’s decision shall be binding upon Landlord and Tenant and neither party will have the right to reject the determination or undo the exercise of the Extension Option.
(vii) If the two (2) appraisers fail to agree upon and appoint a third appraiser, both appraisers shall be dismissed and the matter to be decided shall be forthwith submitted to binding arbitration under the provisions of the American Arbitration Association.
(viii) In the event that the new Basic Rent is not established prior to end of the immediately previous Term of the Lease, the Basic Rent immediately payable at the commencement of the applicable Option Term shall be the Basic Rent determined by Landlord. Notwithstanding the above, once the fair market rental is determined in accordance with this section, the parties shall settle any overpayment on the next Basic Rent payment date falling not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with after such notice to extend)determination.
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Provided Tenant is not in default under any of the terms, covenants and conditions hereof at the time of the exercise of its option, Tenant shall have the option four (4) consecutive options to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date this lease for a period of eight (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower 8) years each. Each such option shall provide Lender with be exercised by Tenant giving Landlord a written notice of Borrower’s request to exercise that it is exercising the First Option to Extend in the form attached hereto as Exhibit C not less than thirty same at least six (306) days and not more than one hundred twenty (120) days months prior to the Original Maturity Date date upon which this lease would otherwise terminate if such option were not exercised. In computing this six (which notice may 6) month period the provisions of Article 10 shall be revoked by Borrower on disregarded. Any extended term hereof, pursuant to the exercise of said option or before the Original Maturity Date; provided Borrower options, shall pay be subject to all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Dateterms, no Default covenants and conditions of this lease, save and except that the rental for the applicable extended term or terms shall exist, and to Borrower’s knowledge no event or condition which, with be the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity fair market rental value of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that demised premises as of the Original Maturity Date time of the Property has achieved a Debt Yield commencement of the applicable extended term. If the parties hereto shall be unable to agree as to the fair market rental value for the extended term or terms, then it shall be determined by arbitration in accordance with the rules of the American Arbitration Association then in effect and judgment upon the award may be entered in any court having jurisdiction thereof. Any improvements constructed on the demised premises by Tenant at least 8.0%; provided, however, in its expense shall not be taken into consideration by determining the fair market value. In the event such required minimum Debt Yield the monthly rental for the first extended term hereof is not achieveddetermined prior to the commencement of such extended term, then Borrower Tenant shall either (i) pay down Landlord monthly rental at the outstanding principal balance rate payable during the immediately preceding extension until such monthly rental is determined. In the event the monthly rental as finally determined exceeds the monthly rental therefore paid by Tenant to Landlord for any such extension, rental shall be due following the determination of such monthly rental in addition to the Loan by monthly rental due for said month, an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as sum total of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in difference between monthly rental therefore paid to Landlord by Tenant during such extended term and the actual monthly rental so determined to be due hereunder for such portion of the extended term. In the event the monthly rental as actually determined for the extended term is less than that theretofore paid to Landlord by Tenant, Landlord shall remit to Tenant, following the determination of such fair market value is not adequate to meet the required Loan-to-Value Percentagemonthly rental, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days sum total of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment difference between monthly rental theretofore paid to Landlord by a like amount Tenant during such extended term and may not the actual monthly rental so determined to be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% due hereunder for such portion of the total commitment amount of the Loanextended term. However, in immediately available funds.
(ix) Borrower no event shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall monthly rental during any extended period be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty One Thousand Six-Hundred and Sixty-six Dollars and Sixty-seven Cents (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend$1,666.67).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Ground Lease (Tehama Bancorp)
Options to Extend. Tenant is hereby granted two (a2) Borrower shall have the option five (5)-year options to further extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date Lease (for purposes of this Sectioneach option, an “Original Maturity DateExtension Option”, and each extended term, an “Extension Term”), with the first Extension Term to commence (if at all) immediately upon the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following Extended Term, and the second Extension Term to commence (if at all) immediately upon the expiration of the first Extension Term. Each Extension Term shall be upon the same terms and conditions precedent of the Lease, as amended hereby, except that Monthly Fixed Rent during the Extension Terms shall be as set forth in Lender’s discretion:
(i) Borrower Section 4 below. Tenant shall provide Lender with Landlord written notice of BorrowerTenant’s request to exercise the First of an Extension Option to Extend in the form attached hereto as Exhibit C not less than thirty at least ninety (30) days and not more than one hundred twenty (12090) days prior to the Original Maturity Date expiration of the Extended Term or first Extension Term, as applicable (which notice may be revoked by Borrower on such notice, an “Extension Notice”). Notwithstanding the foregoing or before anything in the Original Maturity Date; provided Borrower Lease to the contrary, should Tenant fail to timely provide an Extension Notice, Landlord will notify Tenant in writing that it has missed the deadline and Tenant shall pay all costs and expenses incurred by Lender in connection with have ten (10) days after receipt of such notice from Landlord to extend).
provide Landlord with an Extension Notice. If Tenant fails to provide such Extension Notice to Landlord within such ten (ii10)-day period, Tenant’s Extension Option (and any future Extension Option) As will be terminated and Tenant will be deemed to have waived its Extension Option. The Extension Options herein provided replace any option to renew or extend the Lease previously granted to Tenant under the Lease; any such previously granted option to renew or extend is hereby null and void. Tenant’s right to exercise any Extension Option is subject to the condition that, on the date that Tenant delivers its Extension Notice, Tenant is not in default under the Lease beyond the expiration of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving any applicable period of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingcure.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. 15.1 So long as Digital Island, Inc. (aor a Permitted Assignee) Borrower is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have the option three (3) options to extend (the “First Option to Extend”each an "Extension Option") the term of this Lease with respect to the Loan from entirety of the Original Maturity Date Leased Premises, for a period of five (for purposes of this Section, “Original Maturity Date”5) years each (each an "Extension Period"), subject to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionconditions:
(ia) Borrower Each option to extend shall provide Lender with written be exercised, if at all, by notice of Borrower’s request exercise given to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and Landlord by Tenant not more than one hundred twenty (120) days fifteen months nor less than twelve months prior to the Original Maturity Date expiration of the eleventh (which notice may be revoked by Borrower on 11th) year of the Lease Term or before the Original Maturity Date; expiration of the Extension Period then in effect, as applicable;
(b) Anything herein to the contrary notwithstanding, if Tenant is in default (beyond any applicable cure period) under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises an Extension Option or On the commencement date of the applicable Extension Period, Landlord shall have, in addition to all of Landlord's other rights and remedies provided Borrower shall pay all costs and expenses incurred by Lender in connection with this Lease, the right to terminate such option(s) to extend upon notice to extend)Tenant.
(ii) As 15.2 1n the event the applicable Extension Option is exercised in a timely fashion, the Lease shall be extended for the term of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving applicable Extension Period upon all of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement Lease, provided that the Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, increased as set forth below. For purposes hereof, "Fair Market Rent" shall mean the Base Monthly Rent, that a third party tenant executing a five (5) year lease for leased premises of similar size and the other Loan Documents as modified with similar quality improvements and approved by Lender shall remain unmodified tenant improvement allowance in Silicon Valley, taking into account any and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender tenant inducements offered in connection with such notice leasing and the annual increases to extend).
(ii) As Base Monthly Rent Set forth herein; provided however, that the "Fair Market Rent" shall not take into account the value of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event any alterations or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming improvements made to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment Leased Premises by a like amount and may not be re-borrowed.
(v) If required by Lender, Tenant at Borrower’s Tenant's sole cost and expense, which "Fair Market Rent" shall be determined pursuant to the issuance by process described below. At the Title Companyend of the first twelve (12) month period of any Extension Period, and Lender’s receiptat the end of each twelve (12) month period thereafter during any Extension Period, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor Base Monthly Rent shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions increased at a rate of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect3.0% per annum compounded.
Appears in 1 contract
Sources: Lease (Digital Island Inc)
Options to Extend. (a) Borrower Tenant shall have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Initial Terra for two (2) additional consecutive periods of five (5) years each (hereinafter collectively referred to as the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each Extension Period” and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto singularly as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount Period” and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance AmountPeriod”, respectively), provided that (a) Tenant shall give Landlord notice of Tenant’s exercise of each such that said Loan-to-Value Percentage is met or option at least eighteen (18) full months prior to the expiration of the (i) Initial Term with respect to the first such option, and (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal First Extension Period with respect to the Second Extension Loan-to-Value Rebalance Amount The valuation date second such option and (b) Tenant shall not be in default (beyond expiration of such appraisal shall be within ninety (90applicable notice and cure periods, if any) days in the performance or observance of any of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount terms and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity provisions of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory Lease on the part of Tenant to Lender that as be performed or observed at the time of giving applicable notice and the First Extended Maturity Date the Property has achieved a Debt Yield commencement of at least 8.25%; provided, however, in the event each such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in Period. Except for the amount of 0.25% Basic Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional period through which the Initial Term shall be extended as aforesaid, except that there shall be no further option to extend the Term nor shall there be any Allowance nor shalL Landlord be obligated to make or pay for any improvements to the Premises nor pay any architectural or engineering fees, legal fees, brokerage fees or inducement payments of total commitment amount any kind or nature. If Tenant shall give notice of its exercise of each such option to extend in the manner and within the time period provided aforesaid, the Term shall be extended upon the giving of such notice without the requirement of any further attention on the part of either Landlord or Tenant. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any or all conditions precedent to Tenant’s exercise of any such option, which conditions are set forth in clauses (a) and (b) above. If Tenant shall fail to give timely notice of the Loanexercise of any such option as aforesaid, in immediately available funds.
(viii) Guarantor Tenant shall be in compliance with have no right to extend the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions Term of this Lease, time being of the essence of the foregoing provisions. Failure to timely exercise the first such option shall terminate Tenant’s right to exercise the second such option. Any assignment by Tenant of its interest under this Lease or any subleasing of all or any part of the Premises (other than a subletting of a portion of the Premises consented to by Landlord pursuant to Article VI) or any termination of this Lease Agreement and shall terminate the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectrights hereby granted Tenant. Any subletting of the Premises will not transfer to the sublessee any of the rights granted hereby.
Appears in 1 contract
Sources: Lease (Aspen Technology Inc /De/)
Options to Extend. (a) Borrower Tenant shall have the option two (2) options to extend the Term of this Lease (the “First "Options to Extend") for successive periods of five (5) years each (the "Extension Periods"), subject to and on the terms set forth herein. Tenant may only exercise the Options to Extend with respect to the entire Premises. If Tenant shall desire to exercise any Option to Extend”, it shall give Landlord a notice (the "Inquiry Notice") of such desire not later than twelve (12) months prior to the term expiration of the Loan from the Original Maturity Date (for purposes Initial Term of this SectionLease or the preceding Extension Period, “Original Maturity Date”)as the case may be Thereafter, the Fair Market Rent (as defined in Subsection (c) below) for the applicable Extension Period shall be determined in accordance with Subsection (d) below. After the applicable Fair Market Rent has been so determined, Tenant shall exercise each Option to Extend by giving Landlord notice (the "Exercise Notice") of its election to do so not later than nine (9) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:Initial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(b) Notwithstanding any contrary provision of this Lease, at the sole election of Landlord, each Option to Extend and any exercise by Tenant thereof shall be void and of no force or effect unless on the dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) Borrower this Lease is in full force and effect, and (ii) there is no Event of Default of Tenant under this Lease.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term or the preceding Extension Period, as the case may be, in accordance with written the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option to Extend, Landlord shall give Tenant notice of Borrower’s request Landlord's determination of the Fair Market Rent for the applicable Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord's determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant's agreement with or objection to Landlord's determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord's determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts and MAI approved (an "Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the applicable Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord's appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more than one hundred twenty (120) days prior day period, the two Arbitrators shall confer to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As compare their respective determinations of the date Fair Market Rent. If the First Extended Maturity Date, no Default shall exist, and difference between the amounts so determined by the two Arbitrators is less than or equal to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
ten percent (iii10%) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in lower of said amounts then the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance final determination of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount Fair Market Rent shall be equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date average of said amounts. If such appraisal difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) days thereafter to appoint a third Arbitrator (the "Third Arbitrator"), who shall be instructed to determine the Fair Market Rent for the applicable Extension Period within ninety ten (9010) days after its appointment by selecting one of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance amounts determined by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to other two Arbitrators. Each party shall bear the Title Policy, insuring the priority and validity cost of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of Arbitrator selected by such party. The cost for the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; providedThird Arbitrator, howeverif any, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified shared equally by this Second Option to Extend, the terms Landlord and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectTenant.
Appears in 1 contract
Options to Extend. All existing options to renew the Lease or extend the Term set forth in the Lease are deleted, and are replaced with the option to extend the Term set forth in the balance of this Paragraph 4.
(a) Borrower Tenant shall have the option to extend the Term for one (the “First Option to Extend”1) the term additional period of the Loan from the Original Maturity Date five (for purposes of this Section5) years, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with provided that Tenant gives Landlord written notice of Borrower’s request to the exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower of such option on or before the Original Maturity Date; provided Borrower shall pay all costs date that is twelve (12) months prior to the expiration of the then-existing period constituting the Term, and expenses incurred by Lender in connection with that at the time such notice to extend).
(ii) As is given and on the commencement of the Original Maturity Dateextension term concerned, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield this Lease is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect, (ii) Tenant is not in default under the Lease beyond the expiration of any applicable notice and cure period given to Tenant in the Lease, (iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease, and
(iv) such extension is not being exercised in connection with or for the purpose of facilitating any such assignment or sublease. Such extension term shall commence at 12:01 a.m. on the first day following the expiration of the immediately preceding period constituting the Term.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term During such extension term, all provisions of the Loan from the First Extended Maturity DateLease shall apply, except for any provision relating to the Second Extended Maturity Date, upon satisfaction of each and every one improvement of the following conditions precedent in LenderPremises by Landlord or at Landlord’s discretion:
(i) Borrower expense, and except that the amount of Base Rent for such extension term shall provide Lender with written notice of Borrower’s request to exercise be negotiated and determined by mutual agreement between the Second Option to Extend Parties, and shall be the then-market rent for the Premises. The term “then-market rent” as used in the form attached hereto immediately preceding sentence shall mean the annual amount, projected during such extension term, that a willing, comparable, non-equity tenant (excluding assignment and sublease transactions) would pay, and a willing, comparable landlord of a comparable building located in the same market as Exhibit C not less than thirty the Building would accept, at arm’s length (30without compulsion to agree) days for lease extensions or renewals (including what Landlord is accepting for current lease extension or renewal transactions for the Building), for general office space of similar rentable square footage, location and not more than one hundred twenty (120) days prior to quality, but excluding consideration of tenant improvement allowances and lease concessions, if any, then being given by the First Extended Maturity Date (which notice may be revoked, landlords of such similar projects unless such tenant improvement allowances and lease concessions are then being given by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender such persons in connection with such notice to extend)lease extensions or renewals.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Agreement of Lease
Options to Extend. (a) Borrower Provided the Tenant is not in default under this Lease beyond applicable cure periods at the time the Tenant delivers the applicable Extension Notice (as defined below), the Tenant shall have the option [redacted] separate consecutive options to extend the Term, in each case for a further period of [redacted] (each, an “Extension Term”), each option exercisable by written notice to the Landlord (the “First Option to ExtendExtension Notice”) given no later than [redacted]and no earlier than [redacted]prior to the term expiry of the Loan from Initial Term or the Original Maturity Date then current Extension Term, as the case may be (for purposes of this Section, the “Original Maturity Extension Notice Expiration Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with . Each such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal Term shall be within ninety (90) days of on the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the same terms and conditions as the Initial Term, save and except that Basic Rent shall be determined in accordance with paragraph 22.1(b) or 22.1(c), as applicable, the Tenant shall have no further right of this Agreement and extension beyond the other Loan Documents as modified and approved by Lender shall remain unmodified and second Extension Term, the Landlord will have no obligation to pay or provide to the Tenant any allowance, concession or inducement of any nature, or provide any free rent or discounted rent of any nature, or provide any fixturing period, or do or perform any work in full force and effectthe Premises.
(b) Borrower The Basic Rent for each Extension Term shall have a second option be agreed upon by the Landlord and the Tenant prior to extend (the “Second Option to Extend”) the term commencement of the Loan from applicable Extension Term and shall be the First Extended Maturity Datethen current fair market basic rent for the Premises, being the basic rent which would be paid for the Premises in its current condition as of the commencement of the subject Extension Term, including all Leasehold Improvements installed or placed in the Premises. In determining the then current fair market basic rent for the Premises, all relevant circumstances must be considered and applied, including without limitation the basic rent payable for comparable premises in a building of similar size, age and location as the Building, provided that under no circumstances will Basic Rent for any Extension Term be less than the Basic Rent applicable during the last year of the Initial Term in respect of the first Extension Term and during the last year of the first Extension Term in respect of the second Extension Term.
(c) Failing agreement by the parties as to the Second Extended Maturity DateBasic Rent for any Extension Term by not later than 60 days prior to the commencement of the particular Extension Term, either party may submit the matter to a single arbitrator appointed under the Arbitration Act (British Columbia), whose decision will be final and binding upon satisfaction the Tenant and the Landlord. The cost of the arbitration will be borne by the Landlord and the Tenant equally. In the event that the Basic Rent payable during any Extension Term has not been agreed upon or determined by the date of commencement of the particular Extension Term, the Tenant shall pay by way of provisional Basic Rent on the first day of the first month of that Extension Term, an amount equal to the monthly instalment of Basic Rent payable in the month immediately preceding the commencement of such Extension Term, and on the first day of each and every one month thereafter the Tenant shall continue to pay such monthly amount until the new Basic Rent is agreed upon or determined, and, upon the Basic Rent being so agreed upon or determined an appropriate adjustment of Basic Rent shall be made, if required, on the first day of the month next following conditions precedent the month in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise which the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior new Basic Rent is so agreed upon or determined, retroactive to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As commencement of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingapplicable Extension Term.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. Tenant shall have the right (each an “Extension Option”) to extend the Lease Term for two (2) consecutive periods of five (5) years (each an “Extension Period”) on the following terms and conditions. If Tenant wishes to exercise an Extension Option it shall give Landlord written notice (the “Election Notice”) no later than twelve (12) months prior to commencement of the Extension Period. Time is of the essence and late notice shall not be effective. The Election Notice shall be irrevocable. Notwithstanding the foregoing, if either (a) Borrower shall have an Event of Default is outstanding when Tenant delivers the option Election Notice or at the time the Extension Period is to extend commence, or (b) within the “First Option to Extend”immediately preceding twelve (12) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not months Landlord gave Tenant more than one hundred twenty (1201) days prior notice of an alleged default which ripened into an actual Event of Default, then Landlord shall not be required to give effect to Tenant’s Election Notice. If the above conditions are satisfied with respect to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As exercise of the Original Maturity DateExtension Option or if Landlord elects in its discretion to recognize the Election Notice even though the conditions are not satisfied, then the Lease Term shall be extended on the same legal terms and conditions contained in this Lease except that Base Rent for the Extension Period shall be determined as provided below and the applicable Extension Option shall be of no Default further force and effect. Landlord shall exist, not be obligated to provide any concessions or allowances to Tenant or to pay any fee or commission to the brokers identified in the Lease Summary if Tenant exercises an Extension Option (except as may otherwise have been agreed to by Landlord pursuant to any separate fully executed agreement between Landlord and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to said brokers). Tenant may not exercise the First second Extension Option unless the first Extension Option was validly exercised. If Tenant exercises an Extension Option, Base Rent for the Extension Period shall be the Market Rent for the Premises during the Extension Period determined pursuant to Extend.
(iv) [intentionally omitted].
(v) If required by LenderParagraph 4 below. Landlord and Tenant shall, at Borrower’s sole cost upon request of either party after the determination of the Market Rent, execute an amendment to this Lease, to document the extension and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment Market Rent applicable to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal Period. The Extension Options are personal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce LenderTenant originally named herein and any Permitted Transferee who has assumed all of Tenant’s commitment by a like amount obligations under this Lease and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with exercised by or for the requirements benefit of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedparty.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Office Lease Agreement (Qualtrics International Inc.)
Options to Extend. (Provided Tenant is not in default under any of the terms, covenants or conditions of this Lease and subject to the terms and conditions set forth hereafter, Tenant is hereby granted the option to extend the term of Lease for the Premises leased hereunder for two consecutive five year periods:
a) Borrower Tenant's option to extend this Lease is contingent upon Tenant also extending the term of lease for all the Buildings then leased within the Complex. It is further agreed that in the event Tenant does not lease all the buildings within the Complex, nevertheless, Tenant shall have the option to extend (the “First Option to Extend”) lease on the term of buildings so leased per the Loan from the Original Maturity Date (for purposes terms of this Section, “Original Maturity Date”), paragraph 45.
b) Tenant shall notify Landlord in writing of Tenant's exercise of its option to extend the First Extended Maturity Date, upon satisfaction of Lease for each and every one of Building leased within the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not Complex no less than thirty (30) days and not more than one hundred twenty (120) days 12 months prior to the Original Maturity Date (which notice may be revoked by Borrower on or before earliest lease expiration date of any Building leased within the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Complex.
(iic) As The Lease for each building within The Complex shall be extended for a period of five years commencing upon the day after the Lease termination date for such Building within the Complex and shall terminate five years later.
d) The monthly Basic Rent during the extended term shall be 16 as defined in paragraph 4A.
e) The then current payment for Additional Rent described in paragraph 4 D of the Original Maturity Date, no Default Lease shall exist, and continue to Borrower’s knowledge no event or condition which, with be adjusted according to paragraph 4D of the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingLease.
(iiif) Borrower shall execute or cause the execution of all documents reasonably required This option to extend can be exercised solely by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s Tenant for its sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity use of the Security Instrument.
Premises (viincluding any permitted subtenants and affiliates which in total do not exceed 25% of a Complex) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have receivedtransferred or assigned to any sublessee or other party, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment nor may this option be exercised by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25Tenant if more than 25% of the total commitment amount of the Loan, in immediately available fundsa Complex is then subleased to a party other than Tenant or Tenant's affiliates.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Intuit Inc)
Options to Extend. (aSubject to the provisions of Section 24(a)(ix) Borrower above and provided that no Default shall have occurred and be continuing at the option time this Option is exercised, Landlord hereby grants to Tenant three (3) successive options (collectively, the "OPTIONS", and each an "OPTION") to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes Lease Term of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction Lease for three (3) successive periods of five (5) consecutive Lease Years each. Tenant may exercise each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with Option only by giving Landlord written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C thereof not less than twelve (12) months, no more than eighteen (18) months prior to the expiration of the then running initial or extended Lease Term, as the case may be. The covenants, terms and conditions between Landlord and Tenant during each such extended term shall be the same as contained in this Lease for the initial Lease Term, except that Tenant shall have no further right to extend the Lease Term, and the Base Rent payable during each such extended term for which Tenant exercises this Option shall be adjusted for the first Lease Year of the applicable Option to equal the greater of:
a. one hundred and two percent (102%) of the Base Rent due for the preceding Lease Year; and
b. Fair Market Rental of the Leased Premises as of the beginning of the extended term ("OPTION DATE") as hereinafter set forth:
i. Between the three hundred sixty-fifth (365th) and one hundred eightieth (180th) day prior to the Option Date, Landlord and Tenant shall attempt to agree by a written and signed addendum to this Lease on the Fair Market Rental to be payable during such extended term. If Landlord and Tenant are unable to agree on such Fair Market Rental or fail to execute the addendum by the one hundred eightieth (180th) day preceding the Option Date, then, within thirty (30) days thereafter Landlord and not more than one hundred twenty (120) days prior Tenant shall each select a Qualified Appraiser and use the appraisal mechanism set forth in Section 28 to determine the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Fair Market Rental.
(ii) As of . If for any reason the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that Fair Market Rental has not been determined as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; providedOption Date, however, Tenant shall continue to pay Base Rent to Landlord in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (of Landlord's lowest proposal during the “First Extension Debt Yield Shortfall Amount”negotiations set forth in Section 27(b)(i) such that said minimum Debt Yield is metabove, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to and, when the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report Fair Market Rental for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extendextended term is determined, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than Tenant within thirty (30) days and not more than one hundred twenty following Landlord's notice thereof, shall pay to Landlord the amount of any increase for each month during which Tenant paid a lower monthly installment of Base Rent, or, if Tenant has over paid Base Rent, Tenant shall receive a credit for such amounts against Base Rent next coming due.
c. Further, the Base Rent for each Lease Year during an Option after the first Lease Year during said Option shall be increased by two percent (1202%) days prior over the preceding Lease Year.
d. The exercise of all preceding Option(s) is a condition precedent to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extendexercise of any subsequent Option(s).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify e. Any references in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming this Lease to the satisfaction of Lender that Lease Term shall mean the Loan-to-Value Percentage, initial Lease Term as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate extended pursuant to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedthis Section.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Speedfam Ipec Inc)
Options to Extend. (a) Borrower shall have 2.1 Landlord further agrees to grant to Subtenant the option to extend (enter into a direct lease with Landlord upon termination of the “First Option Sublease in 2008 upon the following terms and conditions. Regardless of whether Sublandlord exercises its option to Extend”) renew the Master Lease pursuant to Section 6 of the Second Addendum, Subtenant's option to enter into a direct lease with Landlord shall commence in 2008, at the expiration of the initial term of the Loan from Master Lease, as defined in the Original Maturity Date Second Addendum. Sublandlord's right to renew the Master Lease shall not include the Subleased Premises if Subtenant elects to enter into a direct lease with Landlord for the Subleased Premises. Provided Subtenant is not in monetary default hereunder beyond any applicable notice and cure periods, Subtenant shall have two five-year options (for purposes of this Sectioneach, “Original Maturity Date”an "Option"), at the rental amount described in Section 2.2 below, to the First Extended Maturity Date, upon satisfaction of each and every one lease directly from Landlord all of the following conditions precedent in Lender’s discretion:
(i) Borrower Subleased Premises. In order to exercise an Option, Subtenant shall provide Lender with give Landlord written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less later than thirty (30) days and not more than one hundred twenty (120) 180 days prior to the Original Maturity Date termination date of this Sublease (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with termination of the giving first Option term) of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender its intent to exercise the First Option. If Subtenant exercises the Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expensefor the first Option period, the issuance Base Rent shall be the scheduled rent for the last year under Master Lease, increased by the Title Company3%, and Lender’s receipt, of any endorsements deemed necessary the Base Rent shall increase by Lender for attachment to the Title Policy, insuring the priority and validity 3% each year of the Security Instrument.
Option period. If Subtenant exercises the Option for the second Option period, the Base Rent shall continue to increase by 3% per year. In addition to Base Rent, Subtenant shall pay its proportionate share (vi27.70%) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of annual increases in Property Taxes for the Original Maturity Date the Property has achieved Subleased Premises, over a Debt Yield base year of at least 8.0%1998; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower that Subtenant shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedobligated to pay increases that exceed a 10% increase per year. Landlord shall pay any increases in excess of 10% per year.
(vii) Lender 2.2 If Subtenant does not exercise the first Option, it shall have receivedno right to exercise the second Option.
2.3 Except for the term and rental rate, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal direct lease shall be within ninety (90) days of on the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the same terms and conditions as this Sublease, including the incorporation of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term those terms of the Loan from Master Lease that are not inconsistent with the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one terms of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Sublease.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Sublease (Micro Media Solutions Inc)
Options to Extend. (a) Borrower Tenant shall have the option two (2) options to extend the Term of this Lease (the “First "Options to Extend") for successive periods of ten (10) years each (the "Extension Periods"), subject to and on the terms set forth herein. Tenant may only exercise the Options to Extend with respect to the entire Premises. If Tenant shall desire to exercise any Option to Extend”, it shall give Landlord a notice (the "Inquiry Notice") of such desire not later than fifteen (15) months prior to the term expiration of the Loan from the Original Maturity Date (for purposes Initial Term of this SectionLease or the preceding Extension Period, “Original Maturity Date”)as the case may be. Thereafter, the Fair Market Rent (as defined in Subsection (c) below) for the applicable Extension Period shall be determined in accordance with Subsection (d) below. After the applicable Fair Market Rent has been so determined, Tenant shall exercise each Option to Extend by giving Landlord notice (the "Exercise Notice") of its election to do so not later than twelve (12) months prior to the First Extended Maturity Date, upon satisfaction of each and every one expiration of the following conditions precedent in Lender’s discretion:Initial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(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 dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) Borrower this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant has not assigned or subleased (or agreed to assign or sublease) more than fifty percent (50%) of the rentable floor area of the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term or the preceding Extension Period, as the case may be, in accordance with written the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option to Extend, Landlord shall give Tenant notice of Borrower’s request Landlord's determination of the Fair Market Rent for the applicable Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord's determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant's agreement with or objection to Landlord's determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord's determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the applicable Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord's appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more day period, the two Arbitrators shall confer to compare their respective determinations of the Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than one hundred twenty or equal to ten percent (12010%) of the lower of said amounts then the final determination of the Fair Market Rent shall be equal to the average of said amounts. If such difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) days prior thereafter to appoint a third Arbitrator (the First Extended Maturity Date "Third Arbitrator"), who shall be instructed to determine the Fair Market Rent for the applicable Extension Period within ten (which notice may 10) days after its appointment by selecting one of the amounts determined by the other two Arbitrators. Each party shall bear the cost of the Arbitrator selected by such party. The cost for the Third Arbitrator, if any, shall be revoked, shared equally by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs Landlord and expenses incurred by Lender in connection with such notice to extend)Tenant.
(iif) As Regardless of the date manner in which the First Extended Maturity DateExtension Rent is determined, no Default the Annual Fixed Rent for each Extension Period shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (be subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, set forth in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (iSection 4.1(b) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedhereof.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Tenant shall have the option two (2) options to extend the Term of this Lease (the “First Option Options to Extend”) for successive periods of five (5) years each (the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity DateExtension Periods”), subject to and on the terms set forth herein. Tenant may only exercise the Options to Extend with respect to the First Extended Maturity Dateentire Premises. If Tenant shall desire to exercise any Option to Extend, upon satisfaction it shall give Landlord a notice (the “Inquiry Notice”) of each and every one such desire not later than fifteen (15) months prior to the expiration of the following conditions precedent Initial Term of this Lease or the preceding Extension Period, as the case may be. Thereafter, the Fair Market Rent (as defined in Lender’s discretion:Subsection (c) below) for the applicable Extension Period shall be determined in accordance with Subsection (d) below. After the applicable Fair Market Rent has been so determined, Tenant shall exercise each Option to Extend by giving Landlord notice (the “Exercise Notice”) of its election to do so not later than twelve (12) months prior to the expiration of the Initial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(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 dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) Borrower this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant has not assigned or subleased (or agreed to assign or sublease) more than fifty percent (50%) of the rentable floor area of the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall provide Lender continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the “Extension Rent”) shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to expiration of the Initial Term or the preceding Extension Period, as the case may be, in accordance with written the procedure set forth in Subsection (d) below (the “Fair Market Rent”).
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option to Extend, Landlord shall give Tenant notice of BorrowerLandlord’s request determination of the Fair Market Rent for the applicable Extension Period. Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to exercise Landlord’s determination of the First Option to Extend Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the form attached hereto manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant’s agreement with or objection to Landlord’s determination of the Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord’s determination of the Fair Market Rent as Exhibit C not less than set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant’s objection to Landlord’s determination of Fair Market Rent under the preceding subsection, such notice shall also set forth a request for arbitration and Tenant’s appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an “Arbitrator”). Within five (5) days thereafter, Landlord shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the Fair Market Rent for the applicable Extension Period within thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As after Landlord’s appointment of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amountsecond Arbitrator. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount expiration of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than such thirty (30) days and not more day period, the two Arbitrators shall confer to compare their respective determinations of the Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than one hundred twenty or equal to ten percent (12010%) of the lower of said amounts then the final determination of the Fair Market Rent shall be equal to the average of said amounts. If such difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) days prior thereafter to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute appoint a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan third Arbitrator (the “Second Extension Loan-to-Value Rebalance AmountThird Arbitrator”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal ), who shall be instructed to determine the Fair Market Rent for the applicable Extension Period within ninety ten (9010) days after its appointment by selecting one of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance amounts determined by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to other two Arbitrators. Each party shall bear the Title Policy, insuring the priority and validity cost of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of Arbitrator selected by such party. The cost for the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; providedThird Arbitrator, howeverif any, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified shared equally by this Second Option to Extend, the terms Landlord and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectTenant.
Appears in 1 contract
Options to Extend. (a) Borrower shall have the option to extend (the “First Option to Extend”) the term of the Original Construction Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Construction Loan Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionprecedent:
(i) Borrower shall provide Lender Bondowner Representative with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not more than ninety (90) days but not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Construction Loan Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).;
(ii) As of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, and as of the Original Construction Loan Maturity Date, no Default shall existhave occurred and be continuing, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall existhave occurred and be continuing, and Borrower shall so certify in writing.;
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender Bondowner Representative to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by LenderExtend and shall deliver to Bondowner Representative, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Bondowner Representative;
(iv) There shall have occurred no material adverse change, as determined by Bondowner Representative in its sole discretion, in the issuance financial condition of Borrower, General Partner or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) the date upon which the financial condition of such party was first represented to Bondowner Representative;
(v) Borrower shall represent and warrant that the Partnership Documents and the Tax Credit Investor’s obligations to make the Capital Contributions thereunder, as approved by Bondowner Representative, are unamended and in full force and effect;
(vi) The construction of the Title Company, Project shall be one hundred percent (100%) complete and Lenderfree of all liens (other than liens that Borrower is diligently contesting in good faith and as to which Borrower has obtained bonds to the reasonable satisfaction of Bondowner Representative) as evidenced by Bondowner Representative’s receipt, receipt of any mechanic’s lien free endorsements deemed necessary by Lender for attachment to the Title Policy, insuring a Notice of Completion shall have been recorded, if applicable, and Borrower shall obtain and deliver to Bondowner Representative a copy of a temporary certificate of occupancy or certificate of occupancy issued by the priority and validity appropriate Governmental Authority for the Project or equivalent evidence of Completion of the Security Instrument.construction from the local jurisdiction, if any, and a certificate of completion from Architect in form and substance reasonably satisfactory to Bondowner Representative with a copy of the recorded notice of completion, if any;
(vivii) The Subordinate Loan Documents, Subsidy Contracts, HCD MHP Standard Agreement and HCD VHHP Standard Agreement shall be in full force and effect and Borrower shall be in compliance with all provisions thereof;
(viii) The balance in the interest reserve as of the Original Construction Loan Maturity Date shall be sufficient to pay interest on the Loan until the First Extended Construction Loan Maturity Date;
(ix) Not less than percent ( %) of the residential units in the Project shall be leased and not less than percent ( %) of the residential units in the Project shall be occupied by tenants pursuant to leases which comply with the Regulatory Agreement and all other Restrictions recorded against the Property;
(x) Borrower shall have delivered provided evidence reasonably satisfactory to Lender that as Bondowner Representative of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce LenderBorrower’s commitment by a like amount and may not be re-borrowed.continued compliance with all TCAC achievement dates;
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ixxi) Borrower shall have delivered to Lender an updated Property Condition Report Bondowner Representative evidence satisfactory to Bondowner Representative that the date of expiration of HCD’s commitments to fund the HCD MHP Loan and HCD VHHP Loan shall be not less than thirty (30) days after the First Extended Construction Loan Maturity Date, together with financial projections or other evidence satisfactory to Bondowner Representative demonstrating that the satisfaction of all conditions to the funding of the HCD MHP Loan, HCD VHHP Loan and any other financing sources necessary for the Property in form reasonably acceptable payoff of the Loan shall be achieved prior to Lender.the First Extended Construction Loan Maturity Date; and
(xxii) Guarantor [Borrower shall be pay to the Bondowner Representative on or before the Original Construction Loan Maturity Date an Extension Fee in compliance with the Guarantor Financial Covenants. amount equal to % of the original principal amount of the Loan.] Except as modified by this the exercise of the First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender Bondowner Representative shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Loan Agreement
Options to Extend. Landlord hereby grants to Tenant, two (a2) Borrower shall have the option to extend options (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity DateRenewal Options”), each to extend the First Extended Maturity Date, upon satisfaction of each and every one Term for a five (5) year period (the “Renewal Terms”) after the expiration of the initial Lease Term, or after the expiration of the initial Renewal Term, as the case may be. If exercised, and if the conditions applicable thereto have been satisfied, the Renewal Term shall commence immediately following conditions precedent the end of the initial Term or the initial Renewal Term, as the case may be. The Renewal Options herein granted to Tenant shall be subject to, and shall be exercised in Lender’s discretionaccordance with, the following terms and conditions:
(i1) Borrower shall provide Lender Tenant may exercise a Renewal Option with written notice respect to all or a portion of Borrower’s request to exercise the First Option to Extend then-current Premises so along as the same contains at least two (2) full contiguous floors in the form attached hereto as Exhibit C Building. Each Renewal Option shall be exercisable only by notice given by Tenant to Landlord not less later than thirty nineteen (3019) days and not more than one hundred twenty (120) days months prior to the Original Maturity Date (which notice expiration of the initial Term or the initial Renewal Term, as the case may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)be.
(ii2) As All terms and conditions of this Lease shall be applicable during each Renewal Term, including, but not limited to, those set forth in Section 5 hereof except that the amount of Rent charged for each of the Original Maturity Date, no Default Renewal Terms shall exist, and be equal to Borrower’s knowledge no event or condition which, with ninety-five percent (95%) of the giving “Prevailing Market Rent” (as hereafter defined) for the portion of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingPremises for which Tenant has exercised the subject Renewal Term.
(3) If Tenant’s notice is not given timely, then Tenant’s subject Renewal Option, and any subsequent Renewal Option, shall be of no further force or effect (it being agreed that time shall be of the essence in Tenant’s delivery of such notice of exercise of its Renewal Options to Landlord and that, if such notice is not so delivered within the time aforesaid, Landlord will rely to its detriment on Tenant’s failure to give such notice). If a Material Default exists at the time Tenant delivers to Landlord notice of Tenant’s exercise of a Renewal Option, then Landlord may elect to invalidate Tenant’s exercise of the subject Renewal Option by delivering notice to Tenant within five (5) business days after receipt of Tenant’s notice of exercise. If such invalidation notice (i) is timely and properly delivered by Landlord to Tenant in accordance with the terms of this Lease, (ii) describes the subject Material Default in reasonable detail, and (iii) Borrower shall execute or cause states that Landlord has elected pursuant to that notice and the execution terms of all documents reasonably required by Lender this Section 45, to invalidate Tenant’s exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as subject Renewal Option, then Tenant’s notice of exercise of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%subject Renewal Option shall be invalid; provided, however, such invalidation shall not prevent Tenant from later exercising any Renewal Option through the last day permitted for the same under this Section 45. If Landlord fails to timely and properly deliver notice of invalidation with respect to a prior exercise by Tenant of a Renewal Option, then Tenant’s prior exercise of such Renewal Option shall remain valid and in effect. It is agreed that time shall be of the event essence in Landlord’s delivery of an invalidation notice to Tenant in accordance with the foregoing, and if any such required minimum Debt Yield notice is not achievedso timely and properly delivered within the period specified above, then Borrower Tenant will rely to its detriment on Landlord’s failure to give such notice.
(4) The term “Prevailing Market Rent” for purposes of this Lease shall mean what a willing, comparable, new, non-expansion, non-renewal, non-equity tenant would pay, and a willing landlord of a comparable building located within the Ballston, Virginia submarket would accept, at arm’s length, for a comparable amount of office space for a comparable period of time, in either case giving appropriate consideration to: (i) pay down the outstanding principal balance age, condition and location of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or Building; (ii) deliver the annual rental rates per rentable square foot; (iii) the standard of measurement by which the rentable square footage is measured; (iv) the ratio of rentable square feet to Lender an Acceptable Letter usable square feet; (v) the type of Credit escalation clauses (including, without limitation, type, base year and stop); (vi) the extent of building services; (vii) the extent of liability under the escalation clauses (e.g. whether determined on a “net lease” basis or by increases over a particular base year or base dollar amount); (viii) abatement provisions reflecting free rent and/or no rent during the period of construction or any other period during the lease term; (ix) brokerage commissions, if any, which would be payable by Landlord in a stated comparable transaction; (x) length of the lease term; (xi) size and location of space being leased; (xii) building standard work letter and/or tenant improvement allowances, if any; (xiii) other economic concessions, if any; (xiv) Tenant’s creditworthiness; and (xv) other general applicable conditions of tenancy for a comparable new transaction, so that Tenant will obtain the same rent and other economic benefits that Landlord would otherwise give to any comparable prospective tenant and so that Landlord will make the same economic payments and concessions that Landlord would otherwise make in a comparable new transaction. If, for example, after applying the criteria set forth above, comparable leases provide a new tenant with comparable space at Thirty Dollars ($30.00) per rentable square foot, with a Ten Dollars ($10.00) operating expense allowance, three (3) months at no rent to construct improvements, four (4) months free rent, Fifty Dollars ($50.00) per rentable square foot tenant improvement allowance, a “lease takeover” obligation in the amount of One Hundred Thousand Dollars ($100,000.00), a brokerage commission of Fifty Thousand Dollars ($50,000.00), and certain other generally applicable economic terms, the Prevailing Market Rent shall not be Thirty Dollars ($30.00) per rentable square foot only, but shall be the equivalent of Thirty Dollars ($30.00) per rentable square foot, a Ten Dollar ($10.00) operating expense allowance, three (3) months at no rent to construct improvements or three (3) months additional free rent in lieu of such construction period, an additional four (4) months free rent, Fifty Dollars ($50.00) per rentable square foot tenant improvement allowance or payment in lieu of such allowance, One Hundred Thousand Dollars ($100,000.00) cash payment in lieu of a lease takeover, Fifty Thousand Dollars ($50,000.00) cash payment in lieu of a brokerage commission (or, if a broker is retained by Tenant with respect to the subject space, a cash payment equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lenderdifference between Fifty Thousand Dollars ($50,000.00) and the commissions payable to Tenant’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practicesbroker), confirming to and the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%)other generally applicable economic terms; provided, however, that in no event shall the event such fair market value is not adequate foregoing example be deemed to meet state or imply any obligation on the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance part of Landlord to make any cash payment to Tenant or to provide any of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) types of concessions set forth in such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedexample.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. All existing options to renew the Lease or extend the Term set forth in the Lease are deleted, and are replaced with the option to extend the Term set forth in the balance of this Paragraph 4.
(a) Borrower Tenant shall have the option to extend the Term for one (the “First Option to Extend”1) the term additional period of the Loan from the Original Maturity Date five (for purposes of this Section5) years, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with provided that Tenant gives Landlord written notice of Borrower’s request to the exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower of such option on or before the Original Maturity Date; provided Borrower shall pay all costs date that is twelve (12) months prior to the expiration of the then-existing period constituting the Term, and expenses incurred by Lender in connection with that at the time such notice to extend).
(ii) As is given and on the commencement of the Original Maturity Dateextension term concerned, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield this Lease is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect, (ii) Tenant is not in default under the Lease beyond the expiration of any applicable notice and cure period given to Tenant in the Lease, (iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease, and (iv) such extension is not being exercised in connection with or for the purpose of facilitating any such assignment or sublease. Such extension term shall commence at 12:01 a.m. on the first day following the expiration of the immediately preceding period constituting the Term.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term During such extension term, all provisions of the Loan from the First Extended Maturity DateLease shall apply, except for any provision relating to the Second Extended Maturity Date, upon satisfaction of each and every one improvement of the following conditions precedent in LenderPremises by Landlord or at Landlord’s discretion:
(i) Borrower expense, and except that the amount of Base Rent for such extension term shall provide Lender with written notice of Borrower’s request to exercise be negotiated and determined by mutual agreement between the Second Option to Extend Parties, and shall be the then-market rent for the Premises. The term “then-market rent” as used in the form attached hereto immediately preceding sentence shall mean the annual amount, projected during such extension term, that a willing, comparable, non-equity tenant (excluding assignment and sublease transactions) would pay, and a willing, comparable landlord of a comparable building located in the same market as Exhibit C not less than thirty the Building would accept, at arm’s length (30without compulsion to agree) days for lease extensions or renewals (including what Landlord is accepting for current lease extension or renewal transactions for the Building), for general office space of similar rentable square footage, location and not more than one hundred twenty (120) days prior to quality, but excluding consideration of tenant improvement allowances and lease concessions, if any, then being given by the First Extended Maturity Date (which notice may be revoked, landlords of such similar projects unless such tenant improvement allowances and lease concessions are then being given by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender such persons in connection with such notice to extend)lease extensions or renewals.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower On or before the date which is not less than fourteen (14) full calendar months prior to expiration of (a) the Initial Term in the case of Tenant's option with respect to the First Extension Period (as hereafter defined) and (b) as applicable, the First Extension Period in the case of Tenant's option with respect to the Second Extension Period (as hereafter defined). Tenant shall have the right to provide Landlord with a written request (a "Rent Request") requesting that Landlord provide Tenant with written notice (a "Rent Designation") of the Basic Rent Landlord projects to be the Basic Rent for the Premises during the applicable Extension Period for which a Rent Request is made. Landlord shall provide its Rent Designation to Tenant within 21 days after its receipt of the Rent Request from Tenant. Tenant's right to request a Rent Designation from Landlord is merely for purposes of discussion and information only and neither Landlord nor Tenant shall be bound in any manner thereby. The mere act of Tenant giving Landlord a Rent Request and Landlord providing a Rent Designation shall create no liability or obligation on the part of Landlord or Tenant with respect to any Extension Period and Landlord and Tenant shall only be bound with respect to any Extension Period if Tenant shall timely and properly exercise its option with respect to the applicable Extension Period as hereafter set forth.
(b) Whether or not Tenant shall give Landlord a Rent Request pursuant to the foregoing provisions of Section 14.27(a), Tenant shall nevertheless have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Initial Term for two (2) -56- 62 additional consecutive periods of five (5) years each (hereinafter respectively referred to as the "First Extension Period" and the "Second Extension Period" and sometimes generically as an "Extension Period"), provided that (a) Tenant shall give Landlord notice (an "Option Notice") of Tenant's exercise of each such option at least twelve full calendar months prior to the expiration of (i) the Initial Term in the case of the option with respect to the First Extension Period and (ii) the First Extension Period in the case of the option with respect to the Second Extension Period and (b) no Default of Tenant (after expiration of applicable notice and cure periods, if any) shall exist at the time of giving each applicable notice (c) the original Tenant named in this Lease (or an assignee or sublessee permitted in accordance with the provisions of Section 6.1(b) of this Lease) is itself occupying the entire Premises both at the time of giving the applicable notice and at the time of commencement of each respective Extension Period and (d) Tenant shall fail to give Landlord a Revocation Notice (as hereafter defined) within ten (10) days after the Tenant's receipt of the determination of Fair Market Rental Value as hereafter provided (if Fair Market Rental Value for the applicable Extension is determined by the appraisal process hereafter described). Except for the amount of Basic Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional periods through which the Term of this Lease shall be extended as aforesaid, except that (a) there shall be no further options to extend the Term of this Lease beyond the Second Extension Period, no Elevator Up-Grade, no Lobby Renovation Work or Lobby Allowance nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any Allowance or any inducement payments of any kind or nature and (b) Base Taxes, Base Operating Expenses and Base Utility Expenses shall be adjusted as hereafter set forth. If Tenant shall give an Option Notice of its exercise of an option to extend in the manner and within the time period provided aforesaid and provided that Tenant shall not thereafter give Landlord a Revocation Notice within the time and manner herein specified, the Term of this Lease shall be extended without the requirement of any further attention on the part of either Landlord or Tenant. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (b) or (c) above. Upon the “First Option to Extend”) written request of Landlord, Tenant shall enter into an amendment of this Lease reflecting the term extension of the Loan from the Original Maturity Date (for purposes Term of this SectionLease and the Basic Rent payable by Tenant during the Extension Period. Base Taxes for each respective Extension Period shall be the Taxes for the Tax -57- 63 Year in which the first day of the applicable Extension Period shall fall. Likewise, “Original Maturity Date”)the Base Operating Expenses and Base Utility Expenses for each respective Extension Period shall be the Operating Expenses and Utility Expenses, respectively for the Operating Year in which the first day of the applicable Extension Period shall fall. If Tenant shall fail to exercise any such option as aforesaid as and when specified herein, Tenant shall have no right to extend the Term of this Lease, time being of the essence of the foregoing provisions. Failure of Tenant to timely exercise its option with respect to the First Extended Maturity Date, upon satisfaction Extension Period shall terminate Tenant's rights with respect to the option for the Second Extension Period unless waived in writing by Landlord (in Landlord's discretion). Any termination of this Lease Agreement shall terminate the rights hereby granted Tenant. The Basic Rent payable for each and every one twelve (12) month period during each Extension Period shall be the Fair Market Rental Value (as said term is hereinafter defined) calculated in each case as of commencement of the following conditions precedent applicable Extension Period but in Lender’s discretion:
(i) Borrower no event less than the Basic Rent per annum plus Escalation Charges payable for and with respect to the 12 calendar month period immediately preceding commencement of the applicable Extension Period. Dispute as to Fair Market Value. Landlord shall provide Lender with initially designate the Fair Market Rental Value and shall furnish data in support of such designation by written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than Tenant within thirty (30) days after receipt of Tenant's Option Notice exercising the option for the applicable Extension Period. Such designation by Landlord need not be in the amount specified in any Rent Designation previously given by Landlord pursuant to Section 14.27(a) above and not more than one hundred twenty shall be determined by Landlord in Landlord's sole and absolute discretion. If Tenant disagrees with Landlord's designation of the Fair Market Rental Value, Tenant shall have the right, by written notice (120a "Call for Rent Determination") given to Landlord within ten (10) days prior after Tenant has been notified of Landlord's designation pursuant to this paragraph, to submit such Fair Market Rental Value to be determined as follows: The Landlord and Tenant shall each appoint a Qualified Officer (as said term is hereinafter defined) and shall designate the Qualified Officer so appointed by notice to the Original Maturity Date other party within 15 days after the Tenant's Call for Rent Determination. The two Qualified Officers so appointed shall meet within ten (which notice may be revoked by Borrower on or before 10) days after both Qualified Officers are designated in an attempt to agree upon the Original Maturity Date; provided Borrower shall pay all costs Fair Market Rental Value for the applicable Extension Period and expenses incurred by Lender in connection with such notice to extend).
if, within fifteen (ii15) As days after both Qualified Officers are designated, the two Qualified Officers do not agree upon the Fair Market Rental Upon determination of the Original Maturity DateFair Market Rental Value as aforesaid (unless such determination shall be made by mutual agreement of Landlord and Tenant outside of the Qualified Officer process described above), no Default Tenant shall exist, and have a period of ten (10) days within which to Borrower’s knowledge no event or condition which, give Landlord written notice of its revocation of its Option Notice with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment respect to the Title Policyapplicable Extension Period (such written notice of revocation being a "Revocation Notice"), insuring the priority and validity time being of the Security Instrument.
essence. In the event that Tenant shall fail or neglect to give Landlord a Revocation Notice within the time and manner specified above, Tenant shall be deemed to have accepted the determination of Fair Market Rental value as determined as set forth above and the Term of this Lease shall be extended to include the applicable Extension Period at the Basic Rent so determined as the Fair Market Rental Value. In the event that Tenant shall give Landlord a Revocation Notice within the time and manner hereinabove set forth, time being of the essence, then, Tenant shall be deemed to have revoked its Option Notice and the Term of this Lease shall not be extended to include the applicable Extension Period for which it was given but the Term of this Lease shall be temporarily extended for an additional period of nine (vi9) Borrower shall have delivered evidence reasonably satisfactory to Lender that full calendar months (the "Short Term Extension") beginning as of the Original Maturity Date day immediately following the Property has achieved a Debt Yield last day of at least 8.0%; provided, however, (a) the Initial Term (in the event such required minimum Debt Yield is not achieved, then Borrower case of a Revocation Notice -59- 65 with respect to an Option Notice for the First Extension Period) or (b) the last day of the First Extension Period (in the case of a Revocation Notice with respect to an Option Notice for the Second Extension Period). Basic Rent per rentable square foot per annum payable during the Short Term Extension shall either be at an annual rate equal to the sum of (i) pay down the outstanding principal balance Basic Rent per square foot per annum payable during the last twelve months, as applicable, of (a) the Loan by an amount Initial Term (in the “First case of a Short Term Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in resulting from a stated amount equal Revocation Notice relating to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount Period) and may not be re-borrowed.
(viib) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety Period (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount case of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan Short Term Extension resulting from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal Revocation Notice relating to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or Period plus (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to $1.00 per rentable square foot (for example, if the Second Basic Rent for such 12 month period were $23.00 per rentable square foot per annum, the Basic Rent payable during the subject Short Term Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not would be re-borrowed.
$24.00 (vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in $23.00 + $1.00 = $24.00). Except for the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor Basic Rent which shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extendset forth above, all of the terms and conditions provisions of the Lease shall apply during the Short Term Extension, except that there shall be no option to extend beyond the last day of the Short Term Extension. Accordingly, the provisions of Section 14.19 of this Agreement and Lease shall apply to any holding over beyond expiration of the other Loan Documents Short Term Extension as modified and approved by Lender shall remain unmodified and in full force and effectif the last day of the Short Term Extension were the last day of the Term of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Cyrk Inc)
Options to Extend. (a) Borrower Tenant shall have the option two (2) options (each a “Renewal Option”) to extend the Term, with respect to all or any portion of the Premises described below, for successive periods of five (5) years each following the end of the initial Term (each a “Renewal Period” and collectively the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity DateRenewal Periods”), so long as this Lease is then in effect and no Event of Default by Tenant relating to any monetary obligation of this Lease exists at the First Extended Maturity Date, upon satisfaction of each and every one time of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice exercise of Borrower’s request the applicable Renewal Option. In the event that Tenant desires to exercise its option to renew the First Option to Extend Term for a Renewal Period, Tenant shall so notify Landlord in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower writing on or before the Original Maturity Date; provided Borrower twelfth (12th) month prior to the last day of the Term. Tenant shall pay all costs and expenses incurred by Lender specify in connection with such notice to extendLandlord the portions of the Premises which Tenant desires to lease for the applicable Renewal Period which shall eliminate from the Premises only that Eliminated Area described below (the “Renewal Space”).
. If Tenant fails to designate the portion of the Premises which Tenant desires to lease, Tenant shall be deemed to have elected to lease the entire Premises. Upon the giving of such notice, this Lease and the Term hereof shall automatically be extended for five (5) years without the necessity for the execution of any other instrument in confirmation thereof except for a document memorializing the Annual Rent established as set forth in Section 3.3 below for the then extended Term. Notwithstanding the foregoing, Tenant’s Renewal Options will not lapse because of Tenant’s failure to exercise any Renewal Option unless Landlord gives Tenant notice that Tenant has failed to exercise such Renewal Option prior to the period provided above, and Tenant shall have failed to exercise such option within ten (10) days following Tenant’s receipt of such notice. Except for the reduced square footage (if applicable), the rent payable during the applicable Renewal Period, which shall be determined in the manner provided in Section 3.3 below, and the fact that there shall be no further option to extend beyond the second Renewal Period or with respect to any Eliminated Area (as defined below), each extension shall be upon all the same terms, conditions and provisions as contained in this Lease. In the event Tenant exercises either Renewal Option as to a portion, and not all, of the then current Premises, (i) the Renewal Space must contain at least one hundred thirty thousand (130,000) square feet of rentable area; (ii) As of the Original Maturity Datespace eliminated from the Premises pursuant to this Section (the “Eliminated Area”) must, no Default shall existto the extent reasonably possible, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
be internally contiguous; (iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity each portion of the Security Instrument.
Eliminated Area must contain at least 10,000 contiguous square feet of rentable area and be marketable as office or research and development space on commercially reasonable terms and in accordance with all Legal Requirements; and (viiii) Borrower the Eliminated Area must have access to legally appropriate restrooms, elevator lobby and fire stairs on the applicable floor of the Building and shall have delivered evidence reasonably satisfactory to Lender that as an approximately proportionate share of the Original Maturity Date exterior window walls on the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance applicable floor of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance Building when compared with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance AmountRenewal Space. The valuation date cost of such appraisal partitioning the Renewal Space from the Eliminated Area shall be within ninety (90) days of paid by Landlord. Once the Original Maturity Date. Any principal balance reduction Eliminated Area has been separated from the Premises, Tenant shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender no longer have an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, Term with respect to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)Eliminated Area.
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Dunkin' Brands Group, Inc.)
Options to Extend. (a) Borrower Provided this Lease is then in full force and effect and an Event of Default (as hereinafter defined) has not occurred and is then continuing, Tenant shall have the option to extend the Term for two separate, consecutive periods of 5 years (the each, an “First Option to ExtendExtension Period”) commencing on the term expiration of the Loan from initial Term or the Original Maturity Date first Extension Period, as the case may be.
(for purposes of this Sectionb) Each Extension Period shall be upon the same terms and conditions as apply during the initial Term, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionexcept that:
(i) Borrower the Base Rent for the first Extension Period shall provide Lender with written notice be the lesser of Borrower’s request to exercise (a) **** per square foot of rentable area per Lease Year (“First Extension Period Stipulated Rent”) and (b) **** of the Market Rent (as hereinafter defined); provided, that in no event will the First Option to Extend in the form attached hereto as Exhibit C not Extension Period Base Rent be less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)**** per rentable square foot.
(ii) As Base Rent for the second Extension Period shall be the lesser of (a) **** per rentable square foot per Lease Year (“Second Extension Period Stipulated Rent”) and (b) **** of the Original Maturity DateMarket Rent; provided, no Default shall exist, and to Borrower’s knowledge that in no event or condition which, with will the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingSecond Extension Period Base Rent be less than **** per rentable square foot.
(iiic) Borrower The Market Rent (herein so called) shall execute or cause be the execution of all documents reasonably required by Lender to exercise base rent that would be payable during the First Option to Extend.
subject Extension Period for comparable quality space located in greater downtown Pittsburgh, Pennsylvania (iv) [intentionally omitted].
(v) If required by Lenderthe “Market Area”), at Borrower’s sole cost and expensetaking into account, among other considerations, the issuance by size and location of the Title CompanyBuildings, lease term, level, quality, age and value of the space and leasehold improvements, condition, quality, age, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity location of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as Buildings and Building systems, Building services, tenant inducements, leasing commissions being paid or not being paid, and the condition of the Original Maturity Date Premises. The Market Rent and the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower applicable Extension Period Base Rent shall either be established as follows: (i) pay down at least 12 months prior to the outstanding principal balance expiration of the Loan by initial Term or the first Extension Period, as the case may be, Tenant shall send Landlord written notice of Tenant’s desire to extend the Term, provided that the parties reach an agreement as to the applicable Market Rent and the applicable Extension Period Base Rent. Within 15 days of receipt of said notice, Landlord shall send Tenant written notice (“Landlord’s Renewal Rent Notice”) designating the Market Rent and the applicable Extension Period Base Rent established for the applicable Extension Period; (ii) unless Tenant sends a written notice of objection to Landlord within 15 days after receipt of said designation, the applicable Extension Period Base Rent set forth in said designation shall be the applicable Extension Period Base Rent established for the Extension Period, (iii) if Tenant objects in writing to the applicable Extension Period Base Rent within said 15 day period, Tenant and Landlord shall negotiate in good faith an amount to be the applicable Extension Period Base Rent for such Extension Period. If Landlord and Tenant cannot agree on such applicable Extension Period Base Rent within 15 days after Landlord’s receipt of Tenant’s objection, Tenant, at Tenant’s election, may (i) revoke Tenant’s **** This redacted material has been omitted pursuant to a request for confidential treatment, and the “First Extension Debt Yield Shortfall Amount”) material has been filed separately with the Commission. election to extend the Term and in such that said minimum Debt Yield is metcase this Lease will terminate at the end of the then current Term, or (ii) deliver elect to Lender an Acceptable Letter of Credit proceed to arbitration. If Tenant elects arbitration, Landlord and Tenant shall each select a qualified real estate appraiser and the two selected appraisers shall promptly choose a third qualified real estate appraiser. The third appraiser so selected shall determine the applicable Market Rent for the applicable Extension Period in a stated amount accordance with the parameters set forth in this Section 3.5. Tenant shall pay the costs for said third real estate appraiser if the applicable Market Rent determined by said third real estate appraiser is equal to or greater than the applicable Market Rent designated by Landlord under (i) above; otherwise, Landlord shall pay the costs for said real estate appraiser. If Landlord shall fail to give Landlord’s Renewal Rent Notice within the 30 day period after receipt of the notice from Tenant, Tenant shall have the right to remain in the Premises on a month to month basis paying the Rent that is then in effect, until such time as Landlord does give Tenant the Landlord’s Renewal Rent Notice, at which point, Landlord and Tenant shall determine the applicable Extension Period Base Rent in accordance with the provisions set forth above in this Section 3.5.
(d) Failure of Tenant to provide written notice of extension within the time frame set forth herein shall not be deemed to be a waiver by Tenant of its option to extend the Term until Landlord has notified Tenant in writing that Tenant will have relinquished its right to extend the Term unless within 15 days of the date of Landlord’s notice Tenant provides its written notice of election to extend the Term.
(e) Landlord will provide Tenant a Tenant improvement allowance equal to **** per the then rentable square foot area of Premises (“Allowance”) for each Extension Period option exercised by Tenant in which the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with Period Stipulated Rent or the requirements of FIRREASecond Extension Period Stipulated Rent, as well as the case may be, is determined to be the rent for the applicable Extension Period. During any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices)Extension Period in which the rent is not the First Extension Period Stipulated Rent or the Second Extension Period Stipulated Rent, confirming to whichever is applicable, then the satisfaction of Lender that the Loan-to-Value Percentage, as amount of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in Allowance for such Extension Period shall be the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either lesser of (i) pay down the outstanding principal balance **** per rentable square foot of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met Premises; or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days **** of the Original Maturity DateMarket Area finish allowance for comparable lease space in the Market Area for a 5-year renewal term as determined by the appraiser. Any principal balance reduction At Tenant’s election, either Landlord or Tenant shall reduce Lender’s commitment by a like amount perform the Tenant improvements and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower in either case Tenant shall pay to Lender an extension fee for all costs of Tenant improvements in the amount of 0.25% excess of the total commitment amount Allowance in accordance with Section 10.2 of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Work Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.C.
Appears in 1 contract
Sources: Lease Agreement (Del Monte Foods Co)
Options to Extend. (a) Borrower a. Tenant shall have the option two (2) successive options to extend the Term of this Lease for an additional period of five (5) years each (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”"Renewal Options"), to the First Extended Maturity Date, upon satisfaction of which Renewal Options shall each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with be exercised by serving written notice of Borrower’s request to exercise (the First Option to Extend in the form attached hereto as Exhibit C not less than thirty "Renewal Notice") upon Landlord at least six (306) days and months, but not more than one hundred twenty twelve (12012) days months, prior to the Original Maturity Date expiration of the Initial Term (which notice may be revoked by Borrower on or before then extended Option Term, if applicable) of the Original Maturity DateLease (collectively the "Option Term(s)"); provided Borrower shall pay all costs and expenses incurred by Lender in connection with that such notice to extend).
(ii) As of option is conditioned upon the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and Lease being in full force and effect, and there being no Event of Default existing under the Lease, at the time of delivery of the Renewal Notice. Any termination of the Lease during the Initial Term (or then extended Option Term, if applicable) shall terminate all rights of extension hereunder.
(b) Borrower shall have a second option to extend (b. Upon the “Second Option to Extend”) the term service of the Loan from the First Extended Maturity DateRenewal Notice, and subject to the Second Extended Maturity Dateconditions set forth herein, upon satisfaction of each and every one the Lease shall be extended without the necessity of the following execution of any further instrument or document. Such extended Term shall commence upon the expiration date of the initial Term (or then extended Option Term, if applicable) of the Lease, expire upon the expiration of sixty (60) months thereafter, and be upon the same terms, covenants and conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend as provided in the form attached hereto Lease for the initial Term, except that the Base Rent during the extended Term of the Renewal Options shall be the then Fair Market Rate (as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extenddefined below).
c. The term "Fair Market Rate" shall mean the annual amount per rentable square foot that a willing, comparable, non-equity, non-renewal, non-expansion, new tenant would pay and a willing, comparable landlord for comparable space of a warehouse/office building in San Antonio, Texas (iithe "Comparison Area") As would accept at arm's length, giving appropriate consideration to, without limiting the scope thereof, annual rental rates per rentable square foot, the type of the date the First Extended Maturity Datelease escalation clauses (including, no Default shall existbut without limitation, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole operating expense, a written appraisal prepared in conformance with the requirements of FIRREAreal estate taxes, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practicesCPI), confirming to the satisfaction extent of Lender that liability under the Loan-to-Value Percentageescalation clauses (e.g., as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met whether determined on a "net lease" basis or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.by
Appears in 1 contract
Sources: Lease Agreement (Solo Serve Corp)
Options to Extend. (a) Borrower Landlord hereby grants to Tenant the exclusive and irrevocable option to extend the Term for two (2) additional periods (each such additional period being an "Extended Term") of five (5) year(s) each by giving Landlord written notice at least twelve (12) months prior to the Expiration Date of the Primary Term or the then applicable Extended Term. Tenant shall have the option right to exercise these options to extend (provided that on the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days exercise no Event of Default by Tenant then exists under this Lease and there then exists no uncured default by Tenant with respect to which Landlord has given written notice to Tenant pursuant to the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount provisions of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectParagraph 30 hereof.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Each Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal Term shall be within ninety (90) days of on the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lenderterms, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms covenants and conditions of this Agreement Lease then applicable, except that the Fixed Rent for each Extended Term shall be the "Fair Market Rent" (as hereinafter defined) and except 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 Term. "Fair Market Rent" shall mean (i) the annual effective rental rate per square foot of rentable floor area then being charged by landlords under new leases of office space in the metropolitan Oklahoma City, Oklahoma, market for space similar to the Premises in a building of comparable quality and with comparable parking and other amenities, taking into account concessions offered to new tenants such as free rent, tenant improvement allowances, moving allowances and other such concessions, and taking into account Tenant's repair and maintenance obligations under this Lease and the other Loan Documents as modified Taxes and approved expenses Tenant is obligated to pay under this Lease (or, if applicable, that Tenant is obligated to pay Tenant's Proportionate Share of Operating Expenses and Taxes pursuant to Paragraph 52 and Exhibit "M" in lieu thereof); (ii) the amount of space and length of term taken by Lender shall remain unmodified the tenant; and in full force (iii) the credit worthiness and effectquality of the tenant.
Appears in 1 contract
Sources: Net Lease Agreement (Wells Real Estate Fund Xi L P)
Options to Extend. (a) Borrower shall have So long as no default exists under the terms of this Lease, Landlord hereby grants to Tenant the option to extend (the “First Option to Extend”) the term of this Lease for one (1) additional twelve (12) month periods (each, an “Option”, collectively, the Loan from “Options”) commencing when the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, applicable prior term expires upon satisfaction of each and every one all of the following conditions precedent in Lender’s discretionterms and conditions:
(i) Borrower shall provide Lender with To exercise an Option, Tenant must give written notice of Borrower’s request such election to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than Landlord at least one hundred twenty (120) days prior to the Original Maturity Date date that the Option period would commence (which notice the “Option Notice”). If the Option Notice is not delivered in accordance with the terms of this Lease, the Option shall automatically expire. Each Option may only be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)exercised consecutively.
(ii) As Any extension of the Original Maturity Date, no Default term pursuant to an Option (“Option Term”) shall exist, be under the same terms and conditions as provided in this Lease except for the provisions of this Lease granting the Options and adjustment to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingRent.
(iii) Borrower shall execute The Options are personal to the original Tenant, and cannot be assigned or cause exercised by anyone other than said original Tenant and only while the execution original Tenant is in full possession of all documents reasonably required by Lender to exercise the First Option to ExtendPremises.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, The monthly Rent of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal Option Term shall be within ninety calculated using the method set forth in subparagraph (90b) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectbelow.
(b) Borrower shall have a second option If the Lease expires during Executive’s employment as an Executive Vice President in good standing with Cadence, Landlord will negotiate in good faith to extend (the “Second Option to Extend”) the term of the Loan from Lease. In the First Extended Maturity Dateevent Executive’s employment as an Executive Vice PresidentCadence is terminated other than for Cause (as defined in Section 4.2 of Executive’s Employment Agreement, executed on May 26, 2004) or if Executive resigns his employment as an Executive Vice President as a result of an event constituting Constructive Termination (as defined in Section 4.3 of Executive’s Employment Agreement, executed on May 26, 2004), the Landlord will not exercise its right to terminate the Second Extended Maturity DateLease, except upon satisfaction of each and every one of the Executive’s default thereunder, such that Executive will remain a tenant until 12 months following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrowerupon which Executive’s knowledge, no event employment as an Executive Vice President with Cadence is terminated other than for Cause or condition which, with the giving as a result of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingConstructive Termination.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Provided that Tenant is not in default at the time of exercise or at commencement of the extended term, and otherwise has timely cured all defaults, then Tenant shall have the option 2 consecutive options to extend the Lease term for 5 years each (each, an "Extended Term"). In order to exercise such options, Tenant shall provide written notice ("Notice of Exercise") to Landlord of its election no later than 6 months before the “First Option to Extend”) the term end of the Loan from initial lease term (or first Extended Term). The exercise of such options to extend shall be for the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to entire Premises and shall be on the First Extended Maturity Date, upon satisfaction of each same terms and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend as set forth in the form attached hereto Lease except the Base Rent shall be adjusted as Exhibit C not less than thirty set forth in Paragraph (30b) days and not more than one hundred twenty (120) days prior below. The options provided in this Section 2.03 are personal to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount Tenant and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as exercised by any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met assignee or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectsublessee.
(b) Borrower If Tenant exercises an extension right pursuant to Paragraph (a) above, the initial Base Rent and the periodic increases for the applicable Extended Term shall have be equal to the market rent for a second option to extend 5 year term for comparable space ("Fair Market Rent Schedule") but in no event shall the “Second Option to Extend”) initial Base Rent be less than the term Base Rent paid in Year 10 of the Loan from Lease Term (for the First first Extended Maturity DateTerm) or the Base Rent paid in Year 5 of the first Extended Term (for the second Extended Term). Tenant's estimation of the Fair Market Rent Schedule shall be included with Tenant's option exercise notice. Landlord shall give Tenant notice of Landlord's estimation of Fair Market Rent Schedule ("Landlord's Value Notice") by the later of 20 days after receipt of Tenant's exercise notice or 6 months before the end of the initial Lease Term or first Extended Term, as the case may be. If there is a disagreement on the Fair Market Rent Schedule, the parties shall promptly meet to attempt to resolve their differences. If the differences are not resolved then either party may apply for arbitration in accordance with the below paragraphs. If neither party applies for arbitration within 10 business days after receipt by Tenant of Landlord's Value Notice, Tenant shall be bound to the Second Extended Maturity DateFair Market Rent Schedule stated in Landlord's Value Notice. Should either party elect to arbitrate, upon satisfaction of each and every one if the arbitration is not concluded before the commencement of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First applicable Extended Maturity Date (which notice may be revokedTerm, by Borrower on or before the First Extended Maturity Date; provided Borrower Tenant shall pay all costs and expenses incurred by Lender Monthly Base Rent to Landlord in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Fair Market Rent Schedule set forth in Landlord's Value Rebalance Amount The valuation date of such appraisal Notice, until the Fair Market Rent Schedule is determined in accordance with the arbitration provisions hereof. If the Fair Market Rent Schedule as determined by arbitration differs from that stated in Landlord's Value Notice, then any adjustment required to correct the amount previously paid by Tenant shall be made by payment by the appropriate party within ninety (90) 30 days after the determination of Fair Market Rent Schedule by arbitration has been concluded, as provided herein. Tenant shall be obligated to make payment during the entire Extended Term of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedMonthly Base Rent determined in accordance with the arbitration procedures hereunder.
(vc) If required by Lender, at Borrower’s sole cost and expenseeither party seeks arbitration of Fair Market Rent Schedule under the provisions hereof for the applicable Extended Term, the issuance other party shall be bound to submit the matter for determination by arbitration. The arbitration shall be conducted and determined in the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to county where the Title Policy, insuring the priority and validity of the Security InstrumentProperty is located.
(vid) Borrower A party demanding arbitration hereunder shall have delivered evidence reasonably satisfactory to Lender that as make its demand in writing ("Demand Notice") within 10 business days after service of Landlord's Value Notice. A copy of the First Extended Maturity Date Demand Notice shall be sent to the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance President of the Loan by an amount (Real Estate Board for the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit county in a stated amount equal to which the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.Property
Appears in 1 contract
Options to Extend. Provided that Equinix, Inc., a Delaware corporation, or an Affiliate (aas defined in Section 23.A. hereof) Borrower shall have the option (said Equinix, Inc. or an Affiliate being hereinafter collectively referred to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”as "Equinix"), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower is not then in default in the payment of any Rent due under this Lease and is not then in Default in the performance of any of its other obligations under this Lease, and (ii) has not been in Default more than once during the immediately preceding two (2) years of the Term, in each case both at the time of exercise of the Renewal Option, as hereinafter defined, in question, and at the commencement of the Renewal Period, as hereinafter defined, in question, and is then in occupancy of the Premises at the time of exercise of the Renewal Option, as hereinafter defined, in question, and at the time of the commencement of the Renewal Period, as hereinafter defined, in question, Equinix shall provide Lender with have three (3) successive options (the "Renewal Options") to extend the Term of the Lease, each for a successive additional five (5) year period (the "Renewal Periods") after the expiration of the Initial Term. Each Renewal Option shall be exercisable only by written notice given by Equinix to Landlord not later than twelve (12) months, nor earlier than fifteen (15) months, prior to the expiration of the initial Term, or the Renewal Period then in effect, as the case may be. In the event that Equinix does not timely exercise a Renewal Option, said Renewal Option and all successive Renewal Options shall be null and void and of no further force or effect, time being of the essence in the exercise of each Renewal Option and it being acknowledged and agreed by Equinix that Landlord shall be entitled to rely on any failure by Equinix to give written notice of Borrower’s request its exercise of its Renewal Option by the date set forth herein for such exercise thereof. All terms and conditions of this Lease shall be applicable during the Renewal Period except that the amount of Base Rent charged for each Renewal Period shall be the then "Prevailing Market Rent", which shall be the rent for comparable space in comparable buildings in Loudoun County, Virginia; provided, however, that in no event shall the Prevailing Market Rent determined as aforesaid be deemed to exercise the First Option to Extend in the form attached hereto as Exhibit C not be less than the Base Rent payable under this Lease during the Lease Year immediately preceding the first Lease Year of the Renewal Period. If within thirty (30) days following delivery of Equinix's notice, Landlord and Equinix have not mutually agreed on the Prevailing Market Rent for the Renewal Period in question, then within ten (10) days after the expiration of such thirty-day period, each party shall file written notice to the other setting forth the name and address of a Broker (as hereinafter defined) selected by such party who has agreed to act in such capacity, to determine the Prevailing Market Rent. If either party shall fall to select a Broker as aforesaid, the Prevailing Market Rent shall be determined by the Broker selected by the other party. Each Broker shall thereupon independently make his determination of the Prevailing Market Rent within twenty (20) days after the appointment of the second Broker. If the two Brokers' determinations are not the same, but the higher of such two values is not more than one hundred five percent (105%) of the lower of them, then the Prevailing Market Rent shall be deemed to be the average of the two values. If the higher of such two values is more than one hundred five percent (105%) of the lower of them, then the two Brokers shall jointly appoint a third Broker within ten (10) days after the second of the two determinations described above has been rendered. The third Broker shall independently make his determination of the Prevailing Market Rent within twenty (12020) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amountafter his appointment. The valuation date highest and the lowest determinations of such appraisal value among the three Brokers shall be within ninety (90) days of disregarded and the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor remaining determination shall be in compliance with deemed to be the Guarantor Financial CovenantsPrevailing Market Rent. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than Within thirty (30) days and not more than one hundred twenty (120) days prior to after the First Extended Maturity Date (which notice may be revokedPrevailing Market Rent is determined as aforesaid, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower parties shall execute or cause an amendment to this Lease setting forth the execution of all documents reasonably required by Lender new Rent to exercise be paid for the Second Option to ExtendRenewal Period.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Deed of Lease (Equinix Inc)
Options to Extend. (a) Borrower Provided that Tenant is not then in default under the terms of this Lease, Tenant shall have two (2) successive options to extend the term hereof, each extension to be for a period of five (5) years. Each of said options shall be exercised by written notice to Landlord, delivered not less than six (6) months prior to the expiration of said term. Each of the option to extend (periods shall be on the “First Option to Extend”) same terms and conditions contained herein except that the term initial Guaranteed Minimum Monthly Rental during the initial option period shall be an amount determined by multiplying the Guaranteed Minimum Monthly Rental in effect upon the commencement of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
initial lease term by a fraction (i) Borrower which fraction shall provide Lender with written notice have as its numerator the Consumer Price Index in effect for the month preceding the commencement of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days option period and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As which fraction shall have as its denominator the Consumer Price Index in effect for the month preceding the commencement of the Original Maturity Dateinitial lease term. However, no Default shall exist, and to Borrower’s knowledge in no event or condition which, with shall the giving initial Guaranteed Minimum Monthly Rental during the initial option period be less than the Guaranteed Minimum Monthly Rental in effect immediately preceding the commencement of notice or the passage option period. Effective on July 1st of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause each year during the execution option periods of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expensethis Lease, the issuance Guaranteed Minimum Monthly Rental shall be adjusted by multiplying the Title CompanyGuaranteed Minimum Monthly Rental then in effect by a fraction, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down which fraction shall have as its numerator the outstanding principal balance Consumer Price Index for the preceding month of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or June and (ii) deliver which fraction shall have as its denominator the Consumer Price Index for the month of June for the prior year (except during the first year of the initial option period of this Lease, the month during which the option period commences shall be used rather than June of the prior year). However, in no event shall the rent be reduced below that Guaranteed Minimum Monthly Rental in effect immediately preceding such adjustment. The Consumer Price Index to Lender an Acceptable Letter be used is the Consumer Price Index for All Urban Consumers - All Items, for the United States, published monthly by the United States Department of Credit Labor, in which 1967 equals 100. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new Index. Landlord shall provide Tenant with a “shell building” consisting only of: exterior walls, not including the storefront (masonry and/or stud walls not including paint, drywall or insulation), foundations (not including concrete floor slab), roof, rear door at location to be approved by Landlord, and the following utilities: one (1) 200-amp service to be located in a stated amount equal separate electrical room and primary electrical conduits (without cable) to Tenant’s space; one (1) four inch (4”) sewer lateral stubbed to Tenant’s space, and one (1) one and one-half inch (1.5”) water service lateral (not including water meter or related fees). All utilities will be stubbed and capped to the First Extension Debt Yield Shortfall Amountdemised premises. Any principal balance reduction Tenant shall reduce Lenderbe responsible for furnishing and installing all secondary electrical conduit and/or wiring from the point of connection of Landlord’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming work to the satisfaction of Lender that the Loan-to-Value Percentageactual Tenant electrical panel. Tenant shall be responsible for all fees, as permits, or utilities charges necessitated by Tenant’s use of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, Premises. Tenant agrees to complete and fixturize said Premises in the event such fair market value is not adequate accordance with plans and specifications to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan be prepared by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance AmountTenant and approved by Landlord. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower Landlord shall pay to Lender an extension fee in Tenant the amount sum of 0.25% THIRTY THOUSAND DOLLARS ($30,000.00) as Landlord’s contribution to the cost of Tenant’s improvements, which sum shall be paid within ten (10) days following the commencement of the total commitment amount of the Loan, in immediately available fundsterm hereof.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Sublease (1st Pacific Bancorp)
Options to Extend. (a) Borrower 3.1 Provided that the Licensee shall not be in default pursuant to the terms of the License at the relevant time and provided that Licensee has not effected any assignment of this License or sublet any part of the Equipment Room, the Licensee shall have the option two (2) successive and consecutive options to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date for five (for purposes of this Section5) years each, (each an “Original Maturity DateAdditional Term”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with be exercised by prior written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less Landlord given no later than thirty nine (309) days and not more months but no earlier than one hundred twenty twelve (12012) days months prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As commencement of the Original Maturity DateAdditional Term in question. Each Additional Term shall commence on the day immediately following the last day of the Term or the then current Additional Term, no Default shall existas the case may be, and to Borrower’s knowledge no event or condition whichshall end at midnight on the last day of the period covered by such Additional Term, unless sooner terminated in accordance with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity provisions of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall AmountLicense. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the All terms and conditions of this Agreement the License shall apply during each Additional Term for which the option is validly exercised, save and the other Loan Documents as modified and approved by Lender except that:
a) there shall remain unmodified and in full force and effect.
(b) Borrower shall have a second be no further option to extend (the “Second Option to Extend”License after the expiry of the last Additional Term;
b) there shall be no allowances or other incentives whatsoever;
c) the term Licensee shall accept all licensed areas under the License “as is, where is” without any work to be performed by Licensor; and
d) the License Fee during each Additional Term shall be the then current market rental for similar licenses in the Building, but shall not be less than the License Fee payable by the Licensee during the last year of the Loan from Term or the First Extended Maturity DateAdditional Term, to as the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice case may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend)be.
(ii) As of 3.2 In the date event Licensee does not exercise its first Additional Term within the First Extended Maturity Dateprescribed delay indicated above, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, such Additional Term as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices)the subsequent Additional Term, confirming to the satisfaction of Lender that the Loan-to-Value Percentageif any, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of null and void.
3.3 The rights granted under this option to extend are personal to TELUS COMMUNICATIONS INC. and shall subsist and apply so long as such Licensee is Landlord Tenant $d114739bb56f$0C5A616D7CC448CF92EE97198F8C3F9C.docx occupying and operating the First Extended Maturity Dateentire Equipment Room and has not assigned the License. Any principal balance reduction shall reduce Lender’s commitment by a like amount and These rights may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance transferred or assigned by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security InstrumentLicensee.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Licensing Agreements
Options to Extend. (a) Borrower So long as no Event of Default shall have occurred and be continuing as of the exercise of the Renewal Term option specified herein the Landlord hereby grants to the Tenant an option to extend renew this Lease in whole or in part (the if in part, in full floor increments) for four successive terms of five years each (each a “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity DateRenewal Term”), the first Renewal Term to commence at the expiration of the Basic Term and each other Renewal Term to commence at the expiration of the preceding Renewal Term; provided that in the event any portion of the Premises is subject to subleases at the commencement of the Renewal Term, the Tenant shall be required to renew the entire floor for each space subleased. The Tenant shall have no right to extend the Lease except as provided in this Section 2.3 and Section 2.5. Annual Base Rent during each Renewal Term shall be payable to the First Extended Maturity DateLandlord by the Tenant as described in Section 3.1. The amount of Annual Base Rent for each Renewal Term, upon satisfaction shall equal the annual Fair Market Rental Value of the Premises (or the portion thereof) determined as of the commencement of each Renewal Term during such period. If the Landlord and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C Tenant cannot less than thirty (30) days and not more than one hundred twenty (120) agree on such Fair Market Rental Value by 120 days prior to the Original Maturity Date (which notice may commencement of such Renewal Term, such Fair Market Rental Value shall be revoked determined by Borrower on or before the Original Maturity Date; provided Borrower Appraisal Procedure. Any option to extend shall pay all costs be subject to the following additional terms and expenses incurred by Lender in connection with such notice to extend).conditions:
(iia) As Tenant shall deliver to Landlord, no less than eighteen (18) months prior to the expiration of the Original Maturity DateCurrent Term, no Default shall existwritten notice (each, and to Borrower’s knowledge no event or condition which, with the giving an “Extension Notice”) of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender its intention to exercise the First Option applicable Renewal Term. If Tenant decides to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, renew the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment Current Term as to the Title Policy, insuring the priority and validity less than all of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory Premises then being leased, then Tenant must indicate in the Extension Notice that Tenant exercises its renewal option with respect to Lender that as less than all of the Original Maturity Date Premises then being leased and shall specify in such Extension Notice the Property has achieved a Debt Yield particular floors of at least 8.0%; provided, however, in the event such required minimum Debt Yield Project as to which Tenant is not achievedexercising its option to renew, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal which election shall be within ninety the parameters set forth in subparagraphs (90b) days of the Original Maturity Date. Any principal balance reduction and (c) below, but shall reduce Lender’s commitment otherwise be determined by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee Tenant in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectits sole discretion.
(b) Borrower The portion of the Premises which Tenant elects to exclude from the Premises during any applicable Renewal Term shall have a second be vacated and surrendered by Tenant prior to the commencement of the applicable Renewal Term as provided in Article 20 hereof, subject, however, to the holdover provisions of Article 21 hereof.
(c) If Tenant shall exercise the option to extend (the “Second Option Term for a subsequent Renewal Term with respect to Extend”) the term less than all of the Loan from the First Extended Maturity DatePremises then being leased, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in LenderTenant’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request right to exercise the Second Option option to Extend in extend the form attached hereto Term or Renewal Term, as Exhibit C the case may be, for any succeeding Renewal Term shall not less than thirty (30) days and not more than one hundred twenty (120) days prior apply to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As any portion of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingPremises surrendered during any previous Renewal Term.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Sublease Agreement (Red Hat Inc)
Options to Extend. Landlord hereby grants Tenant two (2) options to extend the Term of this Lease beyond the initial Term. Each option shall be for five (5) year each. Each extension of the Term of this Lease for the Option Period shall be upon the same terms and conditions as those herein specified as applicable to the initial Term of this Lease except that Minimum Monthly Rent shall be at the then fair market value. If Tenant elects to exercise the Option, Tenant must do so by giving Landlord written notice of such election not more than eighteen (18) months and not less than six (6) months prior to the expiration of the then Term of this Lease. A condition precedent to the effective exercise of each Option to extend the Term shall be that Tenant shall not be in material default hereunder (or would be in default but for the passage of time or the giving of notice, or both) either at the time of giving notice of ▇▇▇▇▇▇'s election to exercise an Option or on the effective date of the beginning of the applicable Option Period or at any time between such dates. If Tenant properly gives notice of exercise of an Option hereunder and the conditions thereto are satisfied, then the Term of this Lease shall be extended for the additional Option Period covered by the Option which is exercised. The Options granted herein are personal to the original Tenant named herein and may not be transferred or assigned, whether separate from or as an incident to an assignment or other transfer of ▇▇▇▇▇▇'s interest under this Lease. Any attempted assignment or transfer of any Option shall cause the Option in question to automatically cease and terminate and, in such event, this Lease shall terminate upon the expiration of the then applicable Term. This limitation on transfer of the option does not apply, however, to an assignment of the lease, with option, to a successor entity to Tenant following acquisition or merger. (as per paragraph 21).
(a) Borrower shall have the option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of As used in this Section, “Original Maturity Date”)the term "fair market rental rate" means the annual amount per rentable square foot, to projected during the First Extended Maturity Daterelevant period, upon satisfaction that a willing, comparable, non-equity tenant (excluding sublease and assignment transactions) would pay, and a willing, comparable landlord of each a comparable building in the area in which the Premises are located would accept, at arm's length for an office of comparable size, quality and every one floor height and area as the leased Premises taking into account the age, quality and layout of the following conditions precedent existing improvements in Lender’s discretion:the leased area at issue and the condition of the building and taking into account items that professional real estate brokers customarily consider, including, but not limited to, rental rates, space availability, condition of existing improvements, tenant size, tenant improvement allowances, operating expenses and allowances, reduced rent, free rent, area demographics, traffic and any other lease concessions, if any, then being charged or granted by Landlord or the lessors of such similar office buildings. The fair market rental rate will be an effective rate, not specifically including, but accounting for, the appropriate economic concessions described above.
(ib) Borrower shall Landlord will provide Lender with written notice of Borrower’s request to exercise Landlord's determination of the First Option to Extend in fair market rental rate ("FMRR") and the form attached hereto as Exhibit C new rent rate not less later than thirty (30) days and not more than one hundred twenty after the date upon which Tenant timely exercises its Option. Tenant will have thirty (12030) days prior ("Tenant's Review Period") after receipt of Landlord's notice of the FMRR within which to accept such FMRR or to reasonably object thereto in writing. ▇▇▇▇▇▇'s failure to object to the Original Maturity Date FMRR submitted by Landlord in writing within Tenant's Review Period will conclusively be deemed ▇▇▇▇▇▇'s approval and acceptance thereof. If Tenant reasonably objects to the FMRR submitted by Landlord within Tenant's Review Period, Landlord and Tenant will attempt in good faith to agree upon such FMRR using their best good faith efforts. If Landlord and Tenant fail to reach agreement on such FMRR within fifteen (15) days following the expiration of Tenant's Review Period (the "Outside Agreement Date"), then each party's determination will be submitted to appraisal in accordance with the provisions below.
(i) Landlord and Tenant will each appoint one independent appraiser who by profession must be a real estate broker who has been active over the five (5) year period ending on the date of such appointment in the leasing of offices located in area in which notice may the Premises are located. Each such appraiser will be revoked by Borrower on or before appointed within fifteen (15) days after the Original Maturity Outside Agreement Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As The two appraisers selected shall agree upon the FMRR and if the two appraised rental rates are within 10% of one another, the FMRR shall be the average of the Original Maturity Datetwo rates established by the appraisers. If the two selected appraisers cannot agree on the FMRR within 10%, no Default the two appraisers will within fifteen (15) days agree upon and appoint a third appraiser who shall exist, be qualified under the same criteria set forth herein above for qualification of the initial two appraisers and to Borrower’s knowledge no event or condition which, with the giving FMRR shall be determined within sixty (60) days by the average of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingthree appraised rental rates established by the three appraisers.
(iii) Borrower shall execute If either Landlord or cause Tenant fails to appoint an appraiser within the execution time period specified in Subsection (c)(i) herein above, the appraiser appointed by one of all documents reasonably required by Lender them will, within thirty (30) days following the date on which the party failing to exercise appoint an appraiser could have last appointed such appraiser, establish the First Option to ExtendFMRR and notify Landlord and Tenant thereof, and such appraiser's decision will be binding upon Landlord and Tenant.
(iv) [intentionally omitted]The cost of appraisal (and, if necessary, arbitration) will be shared by Landlord and ▇▇▇▇▇▇ equally.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, process described in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Subsection (b) Borrower shall have above and this Subsection (c) has not resulted in a second option to extend (the “Second Option to Extend”) the term determination of the Loan from fair market rental rate by the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one commencement of the following conditions precedent in Lender’s discretion:
(iapplicable lease term, then the fair market rental rate estimated by Landlord will be used until the appraiser(s) Borrower shall provide Lender reach a decision, with written notice an appropriate rental credit and other adjustments for any overpayments of Borrower’s request to exercise Minimum Monthly Rent or other amounts based on the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As final determination of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedrental rate.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. 15.1 So long as Redback Networks, Inc. is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for a period of five (5) years from the expiration of the ninth year of the Lease Term (the "First Extension Period"), and the second (the "Second Extension Period") for a period of five (5) years from the expiration of the First Extension Period, subject to the following conditions:
(a) Borrower shall have the Each option to extend shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than twelve (12) months nor less than nine (9) months prior to the “expiration of the ninth year of the Lease Term or the expiration of the First Option Extension Period, as applicable;
(b) Anything herein to Extend”the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Extension Period, as applicable, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a timely fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes applicable extension period upon all of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents as modified and approved by Lender Base Monthly Rent for each extension period shall remain unmodified and in full force and effect.
be ninety-five percent (b95%) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from "Fair Market Rent" for the First Extended Maturity DateLeased Premises, increased as set forth below. For purposes hereof, "Fair Market Rent" shall mean the Base Monthly Rent determined pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, process described below. In no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); providedevent, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance a decrease of the Loan Base Monthly Rent for the Leased Premises below the amount due from Tenant for the preceding portion of the initial Lease Term (or the “Second First Extension Loan-to-Value Rebalance Amount”) Period, if such that said Loan-to-Value Percentage Base Monthly Rent is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to being determined for the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90Period) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedfor which Base Monthly Rent had been fixed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Redback Networks Inc)
Options to Extend. (a) Borrower Provided that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option to extend the term of this Lease for two (2) additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option to ExtendTerm”, and the five (5) year period for which the term of is extended in the Loan from event the Original Maturity Date (for purposes of this Section, Second Option is exercised is referred to herein as the “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower Second Option Term.” Tenant shall provide Lender with written notice of Borrower’s request to exercise the First Option Option, if at all, by giving written notice to Extend in the form attached hereto as Exhibit C Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and not more than one hundred twenty (120b) days prior to ten (10) months before the Original Maturity Date commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (which notice as described in Section 5.3 hereof). The Second Option may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise exercised only if the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, is exercised. An exercise of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal Option shall be within ninety (90) days of the Original Maturity Dateirrevocable. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay If Tenant fails to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with give written notice of Borrower’s request to the exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date applicable Option within the First Extended Maturity Datetime provided above, no Default such Option shall existautomatically terminate, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as being of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedessence.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Dj Orthopedics Inc)
Options to Extend. 15.1 So long as Digital Microwave Corporation is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have two options to extend the term of this Lease with respect to the entirety of the Leased Premises; the flat for a period of five (5) years from the expiration of the tenth year of the Lease Term (the "First Extension Period"), and the second (the "Second Extension Period") for a period of five (5) years from the expiration of the first Extension Period, subject to the following conditions:
(a) Borrower shall have the Each option to extend shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than twelve months nor less than nine months prior to the expiration of the tenth year of the Lease Term or the expiration of the First Extension Period, as applicable;
(b) Anything herein to the “contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Option Extension Period or the Second Extension Period, as applicable, Landlord shall have, in addition to Extend”all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a timely, fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes applicable extension period upon all of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, increased as modified and approved by Lender set forth below. For purposes hereof, "Fair Market Rent" shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (mean the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, Base Monthly Rent determined pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, process described below. In no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); providedevent, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance a decrease of the Loan (Base Monthly Rent for the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in Leased Premises below the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.due from Tenant for the
Appears in 1 contract
Options to Extend. OPTION TO EXTEND. Tenant shall have the right and option, which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend the Term of this Lease for two (2) additional consecutive periods of five (5) years each (hereinafter referred to respectively as the "First Extension Period" and the "Second Extension Period" and sometimes individually as an "Extension Period"), provided that (a) Borrower Tenant shall have the give Landlord notice of Tenant's exercise of such option to extend at least nine (the “First Option to Extend”9) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), full calendar months prior to the First Extended Maturity Date, upon satisfaction expiration of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend Original Term in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As case of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, option with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal respect to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount Period and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver the First Extension Period in the case of the option with respect to Lender an Acceptable Letter the Second Extension Period and (b) no Event of Credit Default (after expiration of applicable notice and cure periods, if any) shall exist at the time of giving each applicable notice and on the date of the commencement of each respective Extension Period and (c) the original Tenant named in a stated this Lease or its Affiliate is itself occupying the entire Premises both at the time of giving the applicable notice and at the time of commencement of the applicable Extension Period. Except for the amount equal of Annual Fixed Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the additional periods through which the Term of this Lease shall be extended as aforesaid, except that there shall be no further options to extend the Term of this Lease beyond the Second Extension Period, nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any inducement payments of any kind or nature. If Tenant shall give notice of its exercise of each such option to extend in the manner and within the time period provided aforesaid, the Term of this Lease shall be extended upon the giving of each such notice without the requirement of any further attention on the part of either Landlord or Tenant except to the extent necessary to determine the Annual Fixed Rent as hereafter set forth. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. If Tenant shall fail to give timely notice of the exercise of any such option as aforesaid or if any of the conditions set forth above are not satisfied as and when specified herein, Tenant shall have no right to extend the Original Term of this Lease, time being of the essence of the foregoing provisions. Failure of Tenant to timely exercise its option with respect to the First Extension Loan-to-Value Rebalance AmountPeriod shall terminate Tenant's rights with respect to the option for the Second Extension Period. Any termination of this Lease Agreement shall terminate the rights hereby granted Tenant. The valuation date of such appraisal Annual Fixed Rent payable for each twelve (12) month period during each Extension Period shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.2597.5% of the total commitment amount Fair Market Rental Value (as said term is hereinafter defined) calculated an each case as of commencement of the Loan, applicable Extension Period but in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not no event less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.Annual Fixed Rent plus Additional
Appears in 1 contract
Sources: Lease (Genzyme Transgenics Corp)
Options to Extend. (a) Borrower Provided no Event of Default under this Lease has occurred and is CONTINUING, TENANT shall have the right and option, exercisable by giving Landlord written notice at least nine (9) months prior to the expiration of the initial Term, to to extend the Lease Term for one (1) additional period of four (4) years (the "Extended Term") and, upon the giving of such notice, this Lease shall automatically be extended for such four (4) year period and no further agreement of extension need be executed. In the even that Tenant fails to give such notice to Landlord as herein provided, this Lease shall automatically terminate at the end of the then current Lease Term and Tenant shall have no further right or option to extend (this Lease. The Extended Term shall be upon the “First Option to Extend”) same covenants, agreements, provisions, terms and conditions as during the term of original Lease Term except that the Loan from Annual Fixed Rent during the Original Maturity Date (Extended Term shall equal the Fair Market Rent for purposes of this Sectionthe Leased Premises, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C but not less than the aggregate rent paid during the last year of the initial Term. The "Fair Market Rent" for the Leased Premises shall mean the rent for comparable space in a Class A mid-rise building in lower Bucks County for a new tenant entering into a new four (4) year lease and with the Operating Expense Allowance being adjusted to reflect the expense allowance used in calculating the Fair Market Rent. At least nine (9) months prior to the expiration of the then current Lease Term, Tenant may request Landlord to quote the Fair Market Rent effective for the first day of the Extended Term. If Tenant objects thereto, Landlord and Tenant shall negotiate for a period of thirty (30) days and not more than one hundred twenty (120) days prior to determine whether the Original Maturity Date (which notice may Fair Market Rent can be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in agreed upon. In the event Landlord and Tenant cannot agree on the Fair Market Rent within such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days day period, Landlord and not more than one hundred twenty Tenant shall mutually select a real estate appraiser (120MAI or equal) knowledgeable of rents obtained in Class A mid-rise office buildings in lower Bucks County, Landlord shall submit to such appraiser the lowest Annual Fixed Rent which Landlord is willing to accept, together with any information with respect thereto that Landlord deems relevant and Tenant shall submit to such appraiser the highest Annual Fixed Rent which Tenant is wining to pay, together with any information with respect thereto that Tenant deems relevant, and the appraiser will then select which of Landlord's or Tenant's submissions most clearly reflect the Fair Market Rent for Class A mid-rise office buildings in lower Bucks County for new leases for a four (4) year term as aforesaid. The appraiser's decision shall be rendered within forty-five (45) days prior following his selection and to determine the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As Fair market rent of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, leased premises as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal aforesaid. Such determination shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount final, binding and may not be re-borrowedor conclusive on Landlord and Tenant.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Landlord hereby grants to Tenant the exclusive and irrevocable option to extend the Term for three (3) additional periods (each such additional period being an "Extended Term") of five (5) year(s) each by giving Landlord written notice at least twelve (12) months prior to the Expiration Date of the Primary Term or the then applicable Extended Term. Tenant shall have the option right to exercise these options to extend (provided that on the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days exercise no Event of Default by Tenant then exists under this Lease and there then exists no uncured default by Tenant with respect to which Landlord has given written notice to Tenant pursuant to the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount provisions of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectParagraph 30 hereof.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Each Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal Term shall be within ninety (90) days of on the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lenderterms, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms covenants and conditions of this Agreement Lease then applicable, except that the Fixed Rent for each Extended Term shall be the "Fair Market Rent" (as hereinafter defined) and except that after the exercise of the option for the first Extended Term, Tenant shall have only two (2) options to extend and after the exercise of the option for the second Extended Term, Tenant shall have only one (1) option to extend, and after the exercise of the option for the third Extended Term, Tenant shall have no further options to extend the Term. "Fair Market Rent" shall mean (i) the annual effective rental rate per square foot of rentable floor area then being charged by landlords under new leases of office space in the metropolitan Cary, North Carolina, market for space similar to the Premises in a building of comparable quality and with comparable parking and other amenities, taking into account concessions offered to new tenants such as free rent, tenant improvement allowances, moving allowances and other such concessions, and taking into account Tenant's repair and maintenance obligations under this Lease and the other Loan Documents as modified Taxes and approved expenses Tenant is obligated to pay under this Lease; (ii) the amount of space and length of term taken by Lender shall remain unmodified the tenant; and in full force (iii) the credit worthiness and effect.quality of the tenant. The fair market value of Tenant's modular office furniture shall
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Options to Extend. (a) Borrower shall have Subject to the terms of this Paragraph 40 and Paragraph 42, entitled "Options," Landlord hereby grants to Tenant the option (each, an "Extension Option") to extend the Term of this Lease with respect to the entire Premises for up to two (2) additional periods of five (5) years each (each, an "Option Term"), on the “First same terms, covenants and conditions as provided for in this Lease during the initial Lease Term, except that all economic terms such as, without limitation, Monthly Base Rent, an Operating Expense Allowance, if any, parking charges, etc., shall be established based the "fair market rental rate" for the Premises for the applicable Option to Extend”Term as defined and determined in accordance with the provisions of this Paragraph 40 below. Notwithstanding the foregoing, Monthly Base Rent during each Option Term shall be ninety-five percent (95%) the term of the Loan from fair market Monthly Base Rent, and in no event will Market Base Rent during any Option Term be less that the Original Maturity Date Market Base Rent at the end of the immediately preceding term.
(for purposes b) The Extension Option must be exercised, if at all, by written notice ("Extension Notice") delivered by Tenant to Landlord no earlier than the date which is one (1) year, and no later than the date which is nine (9) months prior to the expiration of the then current Term of this SectionLease.
(c) The term "fair market rental rate" as used in this Addendum shall mean the annual amount per rentable square foot, “Original Maturity Date”projected during the relevant period, that a willing, comparable, non-equity renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, institutional landlord of a comparable Class "A" quality office building located in the ▇▇▇▇ ▇▇▇▇▇ Airport area ("Comparison Area") would accept, at arm's length (what Landlord is accepting in current transactions for the Building or other buildings in the Development may be considered), to for space comparable in size, quality and floor height as the First Extended Maturity Dateleased area at issue taking into account the age, upon satisfaction of each quality and every one layout of the following conditions precedent existing improvements in Lender’s discretion:the leased area at issue and taking into account items that professional real estate brokers customarily consider, including, but not limited to, rental rates, office space availability, tenant size, tenant improvement allowances, operating expenses and allowance, parking charges, free rent, free parking and any other lease concessions, if any, then being charged or granted by Landlord or the lessors of such similar office buildings. The fair market rental rate will be an effective rate, not specifically including, but accounting for, the appropriate lease concessions described above.
(id) Borrower Landlord's determination of fair market rental rate shall provide Lender with written notice of Borrower’s request be delivered to exercise the First Option to Extend Tenant in the form attached hereto as Exhibit C writing not less later than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As following Landlord's receipt of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall Tenant's Extension Notice. Tenant will have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120"Tenant's Review Period") days prior to the First Extended Maturity Date (which after receipt of Landlord's notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and fair market rental rate within which to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event accept such fair market value is not adequate rental rate or to meet object thereto in writing. Tenant's failure to object to the required Loan-to-Value Percentagefair market rental rate submitted by Landlord in writing within Tenant's Review Period will conclusively be deemed Tenant's approval and acceptance thereof. If Tenant objects to the fair market rental rate submitted by Landlord within Tenant's Review Period, then Borrower Landlord and Tenant will attempt in good faith to agree upon such fair market rental rate using their best good faith efforts. If Landlord and Tenant fail to reach agreement on such fair market rental rate within fifteen (15) days following the expiration of Tenant's Review Period, then neither Tenant nor Landlord shall either (i) pay down the outstanding principal balance have any obligation to proceed with such determination of the Loan (fair market rental rate or the “Second applicable Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to Option and this Lease shall terminate upon the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedthen scheduled expiration date.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Office Building Lease (California First National Bancorp)
Options to Extend. (a) Borrower If this Lease shall not have been previously terminated and if TENANT is not in default under the terms of this Lease as of the date TENANT exercises its option hereunder, then TENANT shall have the option to extend the term of this Lease on the same terms and conditions (except for Monthly Rent) for up to three (3) additional terms of five (5) years (“Option Term”) at the expiration of the Initial Term. Said options may be exercised only by the delivery of written notice by TENANT to LANDLORD at least one hundred eighty (180) days, but not more than three hundred sixty (360) days, prior to the expiration of the existing Term (the “First TENANT’s Option Election Notice”). Monthly Rent due each month during any Option Term shall be adjusted to Extend(i) the “Prevailing Fair Market Rate” for the rental of restaurant spaces (“Renewal Rental Rate”) the term or (ii) such other rental amount that may be agreed upon between LANDLORD and TENANT. Within sixty (60) days after receipt of TENANT’s Option Election Notice, LANDLORD shall deliver written notice of LANDLORD’s determination of the Loan from Renewal Rental Rate for the Original Maturity Date Option Term (for the “Option Rent Notice”). If TENANT disputes such determination by LANDLORD, TENANT may elect to withdraw TENANT’s Option Election Notice within ten (10) business days after receipt of the Option Rent Notice and this Lease shall terminate on the original Termination Date. For the purposes of this Section, “Original Maturity Date”), to Prevailing Fair Market Rate” shall be the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend monthly base rent in the form attached hereto San ▇▇▇▇ metropolitan area for leases with substantially similar terms and square footage as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked reasonably determined by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender LANDLORD in connection with such notice to extend)LANDLORD’s reasonable discretion.
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement
Options to Extend. (a) Borrower Grant and Exercise of Option. Provided that (i) no default has occurred and is then continuing, and (ii) Tenant originally named herein or its Permitted Transferee remains in possession of the Leased Premises, Tenant shall have the option to extend the Lease Term for two (2) additional periods of five (5) years each (each an "Extension Term"). Each Extension Term shall be upon the same terms and conditions contained in the Lease except (x) this provision giving two (2) extension options shall be amended to reflect the remaining options to extend, if any, (y) any improvement allowances or other concessions applicable to the Leased Premises under the Lease shall not apply to the Extension Term, and (z) the Minimum Annual Rent shall be adjusted as set forth below (the “First Option "Rent Adjustment"). Tenant shall exercise each option by delivering to Extend”Landlord, no later than one hundred eighty (180) days prior to the term expiration of the Loan from the Original Maturity Date (for purposes of this Sectionpreceding term, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request Tenant's desire to extend the Lease Term. Tenant's failure to timely exercise such option shall be deemed a waiver of such option and any succeeding option. Landlord shall notify Tenant of the First Option amount of the Rent Adjustment no later than ninety (90) days prior to Extend in the commencement of the Extension Term. Tenant shall be deemed to have accepted the Rent Adjustment if it fails to deliver to Landlord a written objection thereto within five (5) business days after receipt thereof. If Tenant properly exercises its option to extend, Landlord and Tenant shall execute an amendment to the Lease (or, at Landlord's option, a new lease on the form attached hereto as Exhibit C not less than then in use for the Building) reflecting the terms and conditions of the Extension Term within thirty (30) days and not more than one hundred twenty after Tenant's acceptance (120or deemed acceptance) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingRent Adjustment.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower If the Tenant is not then in default under the Lease and has not been in recurrent default under the Lease during the Term, the Tenant shall have the right on written request delivered to the Landlord not less than six (6) months prior to the expiry of the initial Term to extend the Term for the Building Premises for one(1) further period of ten (10) years ( THE "FIRST EXTENSION TERM") after the expiry of the initial Term, on the same terms and conditions as set out in the Lease, save and except for any further option to extend and Base Rent for the Building Premises. The Base Rent payable during such Ten (10) year extension shall be the “First Option to Extend”) then current market rent for comparable unfixtured space in the term vicinity of the Loan from Building and with similar exposure to Highway 400. If the Original Maturity Date (parties are unable to agree on the Base Rent for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be extended Term within ninety (90) days prior to the expiry date of the Original Maturity Date. Any principal balance reduction then current Term, the Tenant shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before have the Original Maturity Date, Borrower shall pay right to Lender an extension fee in submit the issue of the amount of 0.25% the Base Rent payable during such first extension Term to arbitration in accordance with the Arbitrations Act, 1991 (Ontario). The Base Rent shall in any event be not less than the Base Rent paid by the Tenant in the twelve (12) months immediately preceding the expiry date of the total commitment amount Term. The costs of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor such arbitration shall be in compliance with the Guarantor Financial Covenantsborne equally by both parties. Except as modified by this First Option to Extend, The Tenant shall execute an extension agreement incorporating the terms and conditions of such extension, which may be in the form of the Landlord's then current Lease for the Building. If the Tenant fails or neglects to submit the issue of the Base Rent payable during such first extension to arbitration within the aforesaid ninety (90) days, the Tenant shall be deemed for all purposes of this Agreement and Lease to have accepted the other Loan Documents as modified and approved Base Rent stipulated by Lender shall remain unmodified and in full force and effectthe Landlord.
(b) Borrower If the Tenant has exercised the right to the first extension of the Term as aforesaid and is not then in default under the Lease and has not been in recurrent default under the Lease during the first extension of the Term, the Tenant shall have a second the right on written request delivered to the Landlord not less than six (6) months prior to the expiry of the first extension Term to extend the Term for the Building Premises for one (1) further period of ten(10) years ( the "SECOND EXTENSION TERM") on the same terms and conditions, save and except for any further option to extend (and Base Rent, which shall be negotiated. The Base Rent payable during such second extension Term shall be the “Second Option to Extend”) then current market rent for comparable unfixtured space in the term vicinity of the Loan from Building and with similar exposure to Highway 400. If the First Extended Maturity Date, parties are unable to agree on the Second Extended Maturity Date, upon satisfaction of each and every one of Base Rent for the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120second extension Term within ninety( 90) days prior to the First Extended Maturity Date expiry date of the first extension Term, the Tenant shall have the right to submit the issue of the amount of Base Rent payable during such second extension Term to arbitration in accordance with the Arbitrations Act, 1991 (Ontario). The Base Rent in any event shall be not less than the Base Rent paid by the Tenant in the twelve (12) months immediately preceding the expiry date of the first extension Term. The costs of such arbitration shall be borne equally by both parties. The Tenant shall execute an extension agreement incorporating the terms and conditions of such extension, which notice may be revokedin the form of the Landlord's then current Lease for the Building. If the Tenant fails or neglects to submit the issue of the Base Rent payable during such second extension Term to arbitration within the aforesaid ninety (90) days, the Tenant shall be deemed for all purposes of this Lease to have accepted the Base Rent stipulated by Borrower the Landlord.
(c) If the Tenant is not then in default under the Lease and has not been in recurrent default under the Lease during the Term, the Tenant shall have the right on written request delivered to the Landlord not less than six (6) months prior to the expiry of the initial Term for the Land Area, to extend the Term for the Land Area for one(1) further period of ten (10) years ( THE " FIRST EXTENSION TERM") after the expiry of the initial Term, on the same terms and conditions as set out in the Lease, save and except for any further option to extend and Base Rent. The Base Rent payable during such Ten (10) year extension shall be the then current market rent for comparable unfixtured space in the vicinity of the Building and with similar exposure to Highway 400.If the parties are unable to agree on the Base Rent for the extended Term within ninety ( 90) days prior to the expiry date of the then current Term, the Tenant shall have the right to submit the issue of the amount of the Base Rent payable during such first extension Term to arbitration in accordance with the Arbitrations Act, 1991 (Ontario). The Base Rent shall in any event be not less than the Base Rent paid by the Tenant in the twelve (12) months immediately preceding the expiry date of the Term. The costs of such arbitration shall be borne equally by both parties. The Tenant shall execute an extension agreement incorporating the terms and conditions of such extension, which may be in the form of the Landlord's then current Lease for the Building. If the Tenant fails or before neglects to submit the First Extended Maturity Date; provided Borrower issue of the Base Rent payable during such first extension Term to arbitration within the aforesaid ninety (90) days, the Tenant shall pay be deemed for all purposes of this Lease to have accepted the Base Rent stipulated by the Landlord. The Tenant's option to extend the Term for the Land Area beyond the initial Term is conditional on the Landlord obtaining consent under the Planning Act, (Ontario) to extend the term of the Lease for the Land Area beyond the initial Term thereof. If the Landlord does not obtain such consent, the Lease for the Land Area shall terminate on the last day of the initial Term for the Land Area. All costs and expenses incurred for related to the obtaining such consent under the Planning Act (Ontario) shall be borne by Lender the Tenant, including , without limitation, all legal fees and disbursements in connection with such notice to extend)therewith.
(iid) As If the Tenant has exercised the right to the first extension of the date Term for the First Extended Maturity DateLand Area and the Landlord has obtained the consent for such extension required under the Planning Act, no Default shall existOntario as aforesaid and the Tenant is not then in default under the Lease and has not been in recurrent default under the Lease during the first extension of the Term, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender Tenant shall have received, at Borrower’s sole expense, a the right on written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming request delivered to the satisfaction of Lender that Landlord not less than six (6) months prior to the Loan-to-Value Percentage, as expiry of the First Extended Maturity Datefirst extension Term to extend the Term for the Land Area for one (1) further period of fifteen(15) years ( the "SECOND EXTENSION TERM") on the same terms and conditions, does not exceed fifty-nine percent (59.0%); providedsave and except for any further option to extend and Base Rent, however, which shall be negotiated. The Base Rent payable during such second extension Term shall be the then current market rent for comparable unfixtured space in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance vicinity of the Loan (Building and with similar exposure to Highway 400. If the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver parties are unable to Lender an Acceptable Letter of Credit in a stated amount equal to agree on the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be Base Rent for the second extension Term within ninety (90) days prior to the expiry date of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expensefirst extension Term, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower Tenant shall have delivered evidence reasonably satisfactory the right to Lender that as submit the issue of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount Base Rent payable during such second extension Term to arbitration in accordance with the Arbitrations Act, 1991 (Ontario). The Base Rent in any event shall be not less than the Base Rent paid by the Tenant in the twelve (12) months immediately preceding the expiry date of the Loan, in immediately available funds.
(viii) Guarantor first extension Term. The costs of such arbitration shall be in compliance with the Guarantor Financial Covenantsborne equally by both parties. Except as modified by this Second Option to Extend, The Tenant shall execute an extension agreement incorporating the terms and conditions of such extension, which may be in the form of the Landlord's then current Lease for the Building. If the Tenant fails or neglects to submit the issue of the Base Rent payable during such second extension Term to arbitration within the aforesaid ninety (90) days, the Tenant shall be deemed for all purposes of this Agreement Lease to have accepted the Base Rent stipulated by the Landlord. The option provided in Section 1.6(c) hereof to extend the Term for the Land Area is conditional on and can only be exercised by the other Loan Documents as modified Tenant if the Tenant has exercised the option to extend the term for Building Premises pursuant to Section 1.6(a). The option provided in Section 1.6(d) hereof to extend the Term for the Land Area is conditional on and approved can only be exercised by Lender shall remain unmodified and in full force and effectthe Tenant if the Tenant has exercised the option to extend the term for Building Premises pursuant to Section 1.6(b).
Appears in 1 contract
Sources: Lease Agreement (Beaconsfield I Inc)
Options to Extend. 19.1 So long as Redback Networks, Inc. is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for a period of five (5) years from the expiration of the ninth year of the Lease Term (the "First Extension Period"), and the second (the "Second Extension Period") for a period of five (5) years from the expiration of the First Extension Period, subject to the following conditions:
(a) Borrower shall have the Each option to extend shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than twelve (12) months nor less than nine (9) months prior to the “expiration of the ninth year of the Lease Term or the expiration of the First Option Extension Period, as applicable;
(b) Anything herein to Extend”the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Extension Period, as applicable, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
19.2 In the event the applicable option is exercised in a timely fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes applicable extension period upon all of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents as modified and approved by Lender Base Monthly Rent for each extension period shall remain unmodified and in full force and effect.
be ninety-five percent (b95%) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from "Fair Market Rent" for the First Extended Maturity DateLeased Premises, increased as set forth below. For purposes hereof, "Fair Market Rent" shall mean the Base Monthly Rent determined pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, process described below. In no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); providedevent, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance any adjustment of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.Base Monthly
Appears in 1 contract
Sources: Lease (Redback Networks Inc)
Options to Extend. 11.1 Subject to the provisions hereinafter set forth in this Article XI, Landlord hereby grants Tenant options to extend the Term on the same terms, conditions and provisions as contained in this Lease, except as otherwise expressly provided herein, for three (3) periods of five (5) years each (collectively the "Extension Periods," or individually an "Extension Period," as applicable). If exercised in accordance herewith, the first Extension Period shall commence on the first (1st) day after the Expiration Date and each successive Extension Period shall commence on the day after the expiration of the immediately preceding Extension Period.
11.2 Said options to extend each shall be exercisable in the following manner:
(a) Borrower shall have the option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not Not less than thirty ninety (30) days and not more than one hundred twenty (12090) days prior to the Original Maturity Expiration Date (which notice may be revoked or the last day of the applicable Extension Period, Tenant, by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such written notice to extendLandlord ("Extension Notice").
(ii) As , may exercise Tenant's option to extend for the next occurring Extension Period. If an option to extend the Term, as the same may have been previously extended, is not extended in the aforesaid manner, the Term and Tenant's rights hereunder and its rights to occupy and possess the Premises shall expire on the Expiration Date, or the last day of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First applicable Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREAPeriod, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and case may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effectbe.
(b) Borrower Subject to Section 11.3 hereof, if Tenant delivers an Extension Notice as aforesaid, the Term shall have a second option to extend (be extended on the “Second Option to Extend”same terms, conditions and provisions as contained herein
11.3 Rent during the first Extension Period shall equal the Rent payable during the initial Term hereof, increased by the Increase Percentage, as that term is hereinafter defined, for the initial Term. Rent during the remaining Extension Period(s) shall equal the term Rent payable during the immediately preceding Extension Period, increased by the Increase Percentage for the immediately preceding Extension Period. "Increase Percentage" shall mean the aggregate sum, for each year during the Term or relevant Extension Period, as the case may be, of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction lesser of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend percentage increase in the form attached hereto Consumer Price Index over the immediately preceding twelve (12) months, as Exhibit C not less than thirty (30) days calculated utilizing the Consumer Price Index for the month of June in the relevant year, and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As Four and One-Half Percent (4.5%). By way of example only, if the date the First Extended Maturity Dateannual increase in Consumer Price Index, no Default shall exist, and to Borrower’s knowledge, no event or condition which, as calculated in accordance with the giving of notice or foregoing, during the passage of time or bothinitial Term is, would constitute a Default shall existrespectively, 2%, 5%, 1%, 6% and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.04.7%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by Increase Percentage to be used in calculating Rent payable during the Title Company, first Extension Period shall equal Sixteen and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be reOne-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.Half
Appears in 1 contract
Sources: Industrial Building Lease (LKQ Corp)
Options to Extend. (a) Borrower Prevailing Market Rental shall have be determined by taking into account Tenant's obligations to pay Operating Expenses and Taxes as provided in the option Lease. If the Prevailing Market Rental is to extend (be determined by arbitration, then, if only one appraiser is selected, that appraiser shall notify the “First Option to Extend”) the term parties in simple letter form of its determination of the Loan from Prevailing Market Rental within fifteen (15) business days following his/her selection, which appraisal shall be conclusive and binding on the Original Maturity Date parties as the Prevailing Market Rental. If multiple appraisers are selected, the appraisers shall meet not later than fifteen (for purposes of this Section, “Original Maturity Date”), to 15) business days following the First Extended Maturity Date, upon satisfaction of each and every one selection of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with last appraiser. At such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expensemeeting, the issuance by appraisers shall attempt to determine the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that Prevailing Market Rental as of the Original Maturity Date termination date of the Property has achieved a Debt Yield Lease by agreement of at least 8.0%; providedtwo (2) of the appraisers. If two (2) or more of the appraisers agree on the Prevailing Market Rental at the initial meeting, howeversuch agreement shall be determinative and binding upon the parties and the agreeing appraisers shall, in simple letter form executed by the event agreeing appraisers, forthwith notify both Landlord and Tenant of the amount set by such required minimum Debt Yield is not achievedagreement. If multiple appraisers are selected and two (2) appraisers are unable to agree on the Prevailing Market Rental, then Borrower all appraisers shall either (i) pay down the outstanding principal balance submit to Landlord and Tenant an independent appraisal of the Loan by an amount Prevailing Market Rental within twenty (the “First Extension Debt Yield Shortfall Amount”20) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as business days following appointment of the Original Maturity Datefinal appraiser. The parties shall then determine the Prevailing Market Rental by averaging the appraisals, does not exceed fifty-nine provided that any high or low appraisal, differing from the middle appraisal by more than ten percent (59.010%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal middle appraisal, shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borroweddisregarded.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower shall have the option to extend (the “First Option to Extend”) the term A. ▇▇▇▇▇▇, provided this Lease is in full force and effect and Tenant is not in default under any of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement Lease at the time of notification or commencement, shall have 2 options to renew (each, a “Extension Option”) this Lease, each for a term of 5 years (each, a “Extension Term”), for the portion of the Premises being leased by Tenant as of the date the applicable Extension Term is to commence, on the same terms and the other Loan Documents conditions set forth in this Lease, except as modified by the terms, covenants and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionas set forth below:
(i) Borrower B. If Tenant elects to exercise the applicable Extension Option, then Tenant shall provide Lender Landlord with written notice no earlier than the date which is 12 months prior to the expiration of Borrowerthe then current Term but no later than the date which is 9 months prior to the expiration of the then current Term. If Tenant fails to provide such notice, Tenant shall have no further or additional right to extend or renew the Term.
C. The Base Rent in effect at the expiration of the then current Term shall be adjusted to reflect the Prevailing Market (defined below) rate as of the date the applicable Extension Term is to commence, taking into account the specific provisions of this Lease which will remain constant. Landlord shall advise Tenant of its proposal for the new Base Rent for the Premises no later than 30 days after receipt of Tenant’s written request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less therefor. Said request shall be made no earlier than thirty (30) days and not more than one hundred twenty (120) 30 days prior to the First Extended Maturity Date first date on which Tenant may exercise the applicable Extension Option under this Article 35. Said notification of the new Base Rent may include a provision for its escalation to provide for a change in the prevailing market rental between the time of notification and the commencement of the applicable Extension Term.
D. If Tenant and Landlord are unable to agree on a mutually acceptable Base Rent for the Extension Term not later than 60 days prior to the expiration of the ten current Term, then Landlord and Tenant, within 5 days after such date, shall each simultaneously submit to the other, in a sealed envelope, its good faith estimate of the Prevailing Market rate for the Premises during the Extension Term (collectively referred to as the “Estimates”). If the higher of such Estimates is not more than 105% of the lower of such Estimates, then the Prevailing Market rate shall be the average of the two Estimates. If the Prevailing Market rate is not established by the exchange of Estimates, then, within 7 days after the exchange of Estimates, Landlord and Tenant shall each select an appraiser to determine which notice may of the two Estimates most closely reflects the Prevailing Market rate for the Premises during the Extension Term. Each appraiser so selected shall be revokedcertified as an MAI appraiser or as an ASA appraiser and shall have had at least 5 years’ experience within the previous 10 years as a real estate appraiser working in Alameda, by Borrower on California, with working knowledge of current rental rates and practices. For purposes hereof, an “MAI” appraiser means an individual who holds an MAI designation conferred by, and is an independent member of, the American Institute of Real Estate Appraisers (or before its successor organization, or in the First Extended Maturity Date; provided Borrower shall pay all costs event there is no successor organization, the organization and expenses incurred by Lender designation most similar), and an “ASA” appraiser means an individual who holds the Senior Member designation conferred by, and is an independent member of, the American Society of Appraisers (or its successor organization, or, in connection with such notice to extendthe event there is no successor organization, the organization and designation most similar).
E. Upon selection, L▇▇▇▇▇▇▇’s and T▇▇▇▇▇’s appraisers shall work together in good faith to agree upon which of the two Estimates most closely reflects the Prevailing Market rate for the Premises. The Estimates chosen by such appraisers shall be binding on both Landlord and Tenant. If either Landlord or Tenant fails to appoint an appraiser within the 7 day period referred to above, the appraiser appointed by the other party shall be the sole appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two Estimates most closely reflects the Prevailing Market rate within 20 days after their appointment, then, within 10 days after the expiration of such 20 day period, the two appraisers shall select a third appraiser meeting the aforementioned criteria. Once the third appraiser (iii.e., the arbitrator) As has been selected as provided for above, then, as soon thereafter as practicable but in any case within 14 days, the arbitrator shall make his or her determination of which of the two Estimates most closely reflects the Prevailing Market rate and such Estimate shall be binding on both Landlord and Tenant as the Prevailing Market rate for the Premises. If the arbitrator believes that expert advice would materially assist him or her, he or she may retain one or more qualified persons to provide such expert advice. The parties shall share equally in the costs of the arbitrator and of any experts retained by the arbitrator. Any fees of any appraiser, counsel or experts engaged directly by Landlord or Tenant, however, shall be borne by the party retaining such appraiser, counsel or expert.
F. If the Prevailing Market rate has not been determined by the commencement date of the applicable Extension Term, Tenant shall pay Base Rent upon the terms and conditions in effect during the last month of the then current Term until such time as the Prevailing Market rate has been determined. Upon such determination, the Base Rent for the Premises shall be retroactively adjusted to the commencement of such Extension Term for the Premises.
G. The Extension Options are not transferable; the parties hereto acknowledge and agree that they intend that the aforesaid options to renew this Lease shall be “personal” to Tenant as set forth above and that in no event will any assignee or sublessee have any rights to exercise the Extension Options.
H. If Tenant fails to validly exercise the first Extension Option, Tenant shall have no further right extend the Term of this Lease. In addition, if both Extension Options are validly exercised or if Tenant fails to validly exercise the second Extension Option, Tenant shall have no further right to extend the Term of this Lease.
J. For purposes of this Article 35, “Prevailing Market” shall mean the arms length fair market annual rental rate per rentable square foot under renewal and expansion amendments entered into on or about the date on which the Prevailing Market is being determined hereunder for space comparable to the Premises in the Building and buildings comparable to the Building in the Alameda, California area as of the date the First Extended Maturity Dateapplicable Extension Term is to commence, no Default shall existtaking into account the specific provisions of this Lease which will remain constant, and to Borrower’s knowledgemay, no event if applicable, include parking charges. The determination of Prevailing Market shall take into account any material economic differences between the terms of this Lease and any comparison lease or condition whichamendment, with such as rent abatements, construction costs and other concessions and the giving of notice or the passage of time or bothmanner, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, howeverif any, in which the event landlord under any such fair market value lease is not adequate to meet the required Loan-to-Value Percentagereimbursed for operating expenses, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount insurance costs and may not be re-borrowedtaxes.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower Provided the Lease is in full force and effect and no Event of Default is outstanding at the time of notification or commencement, Tenant shall have the option to extend the Term of this Lease as set forth in Section 7.5 of the Summary, on the same terms and conditions set forth in the Lease, except as modified by the terms, covenants and conditions as set forth herein. The extension right described herein is personal to INVITAE CORPORATION, a Delaware corporation and its Permitted Transferees (as defined below), and shall not otherwise be assigned or transferred and may only be exercised if Tenant is then in possession of the “First Option entire Premises If Tenant elects to Extend”exercise said option, then Tenant shall provide Landlord with written notice of such election not more than fifteen (15) months or less than nine (9) months prior to the then existing Lease Expiration Date, time being of the essence. If Tenant fails to timely provide such notice, Tenant shall have no further or additional right to extend or renew the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one Lease. Any extension of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal Term shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, upon all the terms and conditions set forth in this Lease, except that: (i) Landlord shall not be obligated to perform any remodeling, renovation, alteration or improvement work in the Premises; (ii) Landlord shall not be obligated to pay any commission to any broker with regard to extension of this Agreement and the other Loan Documents Term; (iii) Base Rent for the extension term shall be at Fair Market Rental (as modified and approved by Lender shall remain unmodified and in full force and effectdefined below) for the Premises.
(b) Borrower shall have a second option to extend (2.2.1. For the “Second Option to Extend”) extension period, the Rent in effect at the expiration of the then current term of the Loan from Lease shall be adjusted to reflect the First Extended Maturity Datethen current Fair Market Rental. “Fair Market Rental” shall mean the monthly amount, projected during the relevant period of time, that a willing, comparable non-equity tenant (excluding sublease and assignment transactions) would pay, and a willing comparable landlord of a comparable quality office building located in the Downtown Palo Alto rental market would accept, at arm’s length, to renew a lease for space of comparable size, quality, ceiling height, loading capabilities and power capacities as the Second Extended Maturity DatePremises, upon satisfaction of each taking into account the age, quality and every one layout of the following conditions precedent Premises and also taking into account the provisions of this Lease and other items that professional real estate brokers customarily consider in Lender’s discretion:
calculating renewal rents such as current rental rates, escalation clauses, operating expense pass-through charges, rent abatement provisions (i) Borrower shall provide Lender with written notice if any), tenant improvement allowances (if any), tenant size and creditworthiness and other factors typically considered by landlords of Borrower’s request to exercise the Second Option to Extend such similar facilities in the form attached hereto as Exhibit C not Downtown Palo Alto rental market. Notwithstanding the foregoing, in no event shall the Fair Market Rental for the option period be less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before highest per square foot Base Rent during the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As preceding period of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingLease Term.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Invitae Corp)
Options to Extend. 15.1 So long as Trident Microsystems, Inc. is the Tenant hereunder and occupies a material portion of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant shall have one option to extend the term of this Lease with respect to the entirety of the Premises for a period of five (5) years from the expiration of the Lease Term (the "Extension Period"), subject to the following conditions:
(a) Borrower shall have the The option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Sectionshall be exercised, “Original Maturity Date”)if at all, to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written by notice of Borrower’s request exercise given to exercise the First Option to Extend in the form attached hereto as Exhibit C Landlord by Tenant not less than thirty (30) days and not more than one hundred twenty eighty (120180) days prior to the Original Maturity Date expiration of the Lease Term;
(which b) Anything herein to the contrary notwithstanding, if Tenant is in default beyond all applicable notice may be revoked by Borrower and cure periods under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises the extension option or on or before the Original Maturity Date; commencement date of the Extension Period, Landlord shall have, in addition to all of Landlord's other rights and remedies provided Borrower shall pay all costs and expenses incurred by Lender in connection with this Lease, the right to terminate such option to extend upon notice to extend)Tenant.
(ii) As 15.2 In the event the option is exercised in a timely fashion, the Lease shall be extended for the term of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving Extension Period upon all of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement Lease, provided that the Base Monthly Rent for the Extension Period shall be the "Fair Market Rent" for the Leased Premises, increased after 12 months in accordance with Article 1. For purposes hereof, "Fair Market Rent" shall mean the base rent for the Premises, based upon the rental rate per square foot that an unaffiliated landlord and tenant would agree to for a lease on the other Loan Documents as modified and approved by Lender shall remain unmodified and terms of this Lease for the Extension Period for comparable premises in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term vicinity of the Loan from the First Extended Maturity DateProperty, determined pursuant to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, process described below. In no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); providedevent, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance a decrease of the Loan (Base Monthly Rent for the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated Premises below the amount equal to due from Tenant for the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days preceding portion of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedinitial Lease Term for which Base Monthly Rent had been fixed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Trident Microsystems Inc)
Options to Extend. (a) Borrower Tenant shall have the option to extend (the “First Option to Extend”) the term of the Loan from Lease for two (2) consecutive periods of five (5) years (each an “Extension Term” and collectively the Original Maturity Date Extension Terms) beginning immediately after the Term or subsequent Extension Term, upon the same terms and conditions of the Lease, except that during each Extension Term, minimum Base Rent payable in accordance with this Lease shall be increased to an amount equal to the lesser of: (i) 2.0% more than the Base Rent for purposes the last month of this Section, the Term for the first Extension Term or previous Extension Term for the subsequent Extension Term with annual increases in base rent of 2.0% during each Extension Term or (ii) ninety five percent (95%) of the fair market rental value of the Premises as reasonably determined by Landlord and as of the commencement of each five (5) year Extension Term (the “Original Maturity Relevant Determination Date”), . In no event shall the Base Rent for each Extension Term be less than the minimum Base Rent for the last year of the Term or prior Extension Term. If the Tenant disputes Landlord’s reasonable determination of fair market rent and the parties are unable to agree upon fair market rent for the Premises by eight (8) months prior to the First Extended Maturity Date, upon satisfaction commencement of each and every one Extension Term, each party may procure a determination of fair market rental value as of the following conditions precedent Relevant Determination Date from a licensed real estate broker who is unaffiliated with the party and has at least five (5) years experience in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend leasing similar properties in the form attached hereto as Exhibit C Lehigh Valley. A party failing to deliver to the other party its determination by six (6) months prior to the commencement of the Extension Term shall be deemed to have waived its right to do so and the fair market rental value shall be deemed to be that set forth in the other party’s broker’s determination. If two brokers shall have been appointed and shall have made their determination within the respective requisite period set forth above and if the difference between the amounts so determined shall not less than exceed ten percent (10%) of the lesser of such amounts, then the fair market rental value shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined. If the difference between the amounts so determined shall exceed ten percent (10%) of the lesser of such amounts, then such two brokers shall have twenty (20) days to appoint a third broker (“Third Broker”). The Third Broker shall be instructed to determine the fair market rental value within thirty (30) days after appointment and not more than one hundred twenty (120) days prior the determination of the other broker shall be final and binding upon Landlord and Tenant as to the Original Maturity Date (which notice may be revoked fair market value. Landlord and Tenant shall each pay the fees and expenses of the broker appointed by Borrower on or before the Original Maturity Date; provided Borrower it and each shall pay all costs one-half of the fees and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, Third Broker. To exercise each option to extend for the Extension Terms Tenant must:
1. not be in default at the time it exercises the option to extend and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield commencement of each Extension Term; and
2. give written notice to Landlord that Tenant is exercising each Extension Term at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either nine (i9) pay down the outstanding principal balance months before expiration of the Loan by an amount (the “First Term or then applicable Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedTerm.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower shall have the option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender 38.1 Provided that as of the Original Maturity Date time of the Property has achieved a Debt Yield giving of the Tenant's extension notice and the commencement date of the extension term, (x) Tenant is the Tenant originally named herein or successors or affiliates of Tenant, (y) Tenant actually occupies at least 8.0%75% of the Premises, and (z) no uncured Event of Default exists; provided, howeverthen Tenant shall have the successive options to extend the term of this Lease for two (2) successive five (5) year periods from and after the date of the expiration of the original term thereof. Tenant shall exercise each option of extension by notice to Landlord given not later than the last to occur of the date which is twelve (12) months prior to the expiration of the then current (initial or extended) term. However, in any event, the event term of this Lease shall expire on the day scheduled therefor without extension if such option to extend shall not have been exercised by Tenant. If Tenant, having exercised an available extension option, is in occupancy of space during an extended term of this Lease and the Base Rent and any other applicable charge have not been established for such period then Tenant shall be obligated to pay the Base Rent and any other charge for such period when established, retroactively to the first day of the period following the expiration of the initial or an extended term of this Lease. Notice from Tenant to Landlord of the exercise of an option shall always be sufficient if notice thereof is given as required minimum Debt Yield by the notice clause of this Lease and if signed by an authorized officer of Tenant and such notice is not achievedaccompanied by the certification of authority of such officer from a suitable attesting officer, then Borrower such as a vice president of Tenant, and, upon the giving of such notice, the term of this Lease shall either be automatically extended for the period next ensuing, without the requirement of the execution of any further instrument, upon all the terms, provisions and conditions set forth in this Lease, except that the Base Rent and other charges payable on account of each such extension shall be adjusted as set forth below and that there shall be no right to extend beyond those provided herein.
(a) The Base Rent payable by Tenant to Landlord for the first extension term shall be the greater of (i) pay down the outstanding principal balance Base Rent in effect for the last year of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, initial term or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements product of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option initial Base Rent determined under the Supplement to Extend, the terms and conditions of this Lease Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect(y) 1.800944.
(b) Borrower The Base Rent payable by Tenant to Landlord during the second extension term shall have a second option to extend (be the “Second Option to Extend”) the term greater of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior Base Rent applicable to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As last year of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met previous extension terms or (ii) deliver the then prevailing market rate for renewal leases of comparable space in the Denver Technological Center, taking into account the size of the Lease, the length of the renewal terms, market escalations and the credit of Tenant ("Fair Market Rent"). The Base Rent shall not be further reduced by reason of any costs or expenses saved by Landlord by reason of Landlord's not having to Lender find a new tenant for such premises (including, without limitation, brokerage commissions, costs of improvements, rent concessions or lost rental income during any vacancy period). In the event Landlord and Tenant fail to reach an Acceptable Letter of Credit agreement in a stated amount equal writing as to such Base Rental rate at least six (6) months prior to the Second Extension Loan-to-Value Rebalance Amount The valuation expiration of the Lease, then Tenant's exercise of the second renewal option shall be deemed withdrawn and the Lease shall terminate on the expiration date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedfirst extension period, unless Tenant or Landlord invokes the arbitration procedure provided below to determine the Fair Market Rent.
(vc) If required Arbitration to determine the Fair Market Rent shall be in accordance with the procedures set forth on attached Exhibit E; provided that the rules applied shall be the Real Estate Valuation Arbitration Rules of the American Arbitration Association. Either party may elect to arbitrate by Lendersending written notice to the other party and the Denver area regional office of the American Arbitration Association within 5 days after the expiration of the negotiating period provided in Paragraph (b), at Borrower’s sole cost invoking the binding arbitration provisions of this Paragraph and expenseExhibit E. Notwithstanding any other provision herein or in Exhibit E, the issuance Fair Market Rent determined by the Title Companyarbitrator shall not be less than, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower arbitrator shall have delivered evidence reasonably satisfactory no authority to Lender that determine a Fair Market Rent less than, the Base Rent in effect as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance scheduled expiration of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedLease Term.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. Sublessee acknowledges that Sublessor has two (a2) Borrower shall have the option options to extend (the “First Option to Extend”) the term of the Loan from Master Lease, each option for a two (2) year extension term. Sublessor may elect to exercise or not exercise such options in Sublessee's sole and absolute discretion. If Sublessor elects to exercise an extension option under the Original Maturity Date Master Lease, then, Sublessee shall have the right to elect to extend the Sublease for the corresponding two (for purposes of this Section2) year extension, “Original Maturity Date”)subject, however, to the First Extended Maturity Datefollowing terms and conditions. Sublessee's right to exercise any such option is subject to the timely payment by Sublessee of all monetary amounts due to Sublessor under this Sublease. If Sublessee fails to pay when due any sums owing to Sublessor pursuant to this Sublease more than three (3) times during the initial term of this Sublease, upon satisfaction or more than once during the period of each and every one any extension of the initial term of the Sublease, all rights and options of Sublessee to extend the term of the Sublease shall automatically terminate. Sublessee shall exercise each option (if the right to such option comes into existence) by delivery of written notice thereof to Sublessor within ten (10) business days following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with Sublessor's delivery of written notice of Borrower’s request Lessor's election to exercise an option to extend the First Option to Extend in term of the form attached hereto as Exhibit C Master Lease. Sublessee does not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with deliver such exercise notice to extend).
Sublessor within such ten (ii10) As business day period, Sublessee shall be deemed to have elected not to exercise such option, and all options rights of Sublessee to extend to term of the Original Maturity Date, no Default Sublease shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) automatically terminate. If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by Sublessee timely exercises an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extendoption right hereunder provided herein, the terms and conditions of this Agreement and Sublease shall continue to apply for the other Loan Documents corresponding extension term; provided, however, that Base Rent payable by Sublessee for the corresponding extension term shall be equal to the fair market rent (as modified and approved by Lender shall remain unmodified and in full force and effect.
(bdefined below) Borrower shall have a second option to extend (for the “Second Option to Extend”) the Premises for such extension term as of the Loan from commencement of the First Extended Maturity Dateextended term. However, to in no event shall Base Rent for the Second Extended Maturity Datefirst year of any such extended term be less than one hundred three percent (103%) of the Base Rent applicable during the year immediately preceding the extended term. Further, upon satisfaction Base Rent for the second year of each extended term shall be increased by the greater of three percent (3%) or the percentage increase in the Consumer Price Index (but in no event greater than 5%) as determined pursuant to paragraph 12.1 above in this Addendum. If the Sublessor and every one Sublessee cannot agree on the fair market rent of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise Premises for the Second Option to Extend in the form attached hereto as Exhibit C not less than applicable extension term within thirty (30) days after Sublessee has exercised its option for the extended term, Sublessor and not more than one hundred twenty (120) days prior Sublessee shall proceed with the determination of fair market rent pursuant to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender procedures set forth in connection with such notice to extend).
(ii) As paragraph 37.1.3 of the date Master Lease regarding the First Extended Maturity Dateselection of appraisers and the determination of fair market rent by appraisers, no Default shall existincluding the time frames set forth in such provisions, as if Sublessee were "Tenant" thereunder, and to Borrower’s knowledgeSublessor was "Landlord" thereunder. For purposes hereunder, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender "fair market rent" shall have received, at Borrower’s sole expense, a written appraisal prepared the meaning set forth in conformance with paragraph 37.1.3 of the requirements of FIRREA, Master Lease as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming pertaining to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedPremises.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Options to Extend. (a) Borrower shall have Provided Tenant is not in default on any of the terms, covenants or conditions of this Lease, and subject to the terms and conditions set forth hereafter, Tenant is granted the option to extend the term of Lease on the Premises to February 28, 2018 on the following terms and conditions:
(the “First Option a) On or before June 1, 2012, Tenant shall notify Landlord in writing of Tenant's exercise of this option to Extend”) extend the term of the Loan from Lease to February 28, 2018.
(b) The extended term of the Original Maturity Date Lease shall commence on March 1, 2013 and shall terminate on February 28, 2018.
(c) The monthly Basic Rent as of the commencement date of the extended term of the Lease shall be at the then Fair Market Rate. In determining Fair Market Rate, Landlord and Tenant shall include consideration for lease term, lease rate, escalations, tenant improvement contributions, any other tenant concessions, and the condition of the Premises.
(d) The then current payment for Additional Rent described in Paragraph 4D of the Lease shall continue to be paid and adjusted according to Paragraph 4D of this Lease.
(e) This Option to extend can be exercised only by Catholic Healthcare West or by a subsidiary or Affiliate of Catholic Healthcare West for its sole use of the Premises and may not be transferred or assigned to any sublessee or other party, nor may this option be exercised by Catholic Healthcare West, its subsidiary or Affiliate for the use of the Premises by any sublessee or party other than Catholic Healthcare West, its subsidiary or Affiliate. For purposes of this SectionParagraph 2C, “Original Maturity Date”)the Fair Market Rate shall be defined as the prevailing market rate with interim adjustments (if any) then charged for comparable space of comparable quality in the immediate San Mateo/▇▇▇▇▇▇ City/Redwood Shores market area. Within 30 days of Tenant's exercise of Option, Landlord shall notify Tenant of such rate as reasonably determined by Landlord. Landlord and Tenant shall attempt to agree in writing on such Fair Market Rate. If Landlord and Tenant do not agree on the Fair Market Rate for the Premises by that date which is one hundred fifty (150) days prior to the First Extended Maturity Date, upon satisfaction of each and every one commencement of the following conditions precedent in Lender’s discretion:
extended term, then Landlord and Tenant shall each select a licensed real estate broker (ithe "Brokers") Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend a minimum five (5) years commercial leasing experience in the form attached hereto above referenced market area to determine the Fair Market Rate for the Premises. If the Brokers are unable to agree as Exhibit C not less than thirty (30) days and not more than to the Fair Market Rate by that date which is one hundred twenty Twenty days (120) days prior to the Original Maturity Date commencement of the extended term, then the Brokers shall mutually select a third licensed real estate broker (the "Arbitrator") who has the same minimum qualifications as the Brokers and who has not previously represented either party. Each broker shall submit to the Arbitrator in an unidentified, sealed envelope his or her determination of the Fair Market Rate for the Premises, and the support thereof, and the Arbitrator shall decide which notice may Broker has most accurately determined the Fair Market Rate, which decision shall be revoked by Borrower final and binding on or before the Original Maturity Date; provided Borrower both Landlord and Tenant. Landlord and Tenant shall each pay all their own Broker's fees and costs and expenses incurred by Lender in connection with such notice to extend).
shall each pay one-half (ii1/2) As of the Original Maturity Date, no Default shall exist, Arbitrator's fees and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writingcosts.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease (Siebel Systems Inc)
Options to Extend. (a) Borrower Provided that Lessee is not in default of the terms, covenants and conditions of this Lease, Lessee shall have the option to extend (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes Term of this Section, “Original Maturity Date”), Lease for nine (9) successive one year periods. Lessee shall exercise each such option to extend the First Extended Maturity Date, upon satisfaction Term of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with this Lease by written notice of Borrower’s request (an "Extension Notice") to that effect sent to Lessor. To validly exercise an option to extend, Lessee shall deliver the First Option Extension Notice therefore to Extend in the form attached hereto as Exhibit C not less Lessor no later than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As expiration of the Original Maturity Dateinitial Term or subsequent extension. Term of the Lease, no Default as applicable. If an option to extend is properly and timely exercised, this Lease shall existcontinue during the extension period on all of the same covenants, conditions, agreements, terms, limitation, exceptions and reservations as are contained in this Lease (unless changed or modified by mutual agreement), except for such of the provisions of this Lease as are pertinent only to and applicable only during the initial Term or any prior extension Term of this Lease, and except that the Base Rent during the extension period shall be equal to Borrower’s knowledge the Base Rent in effect immediately preceding the extension period increased by the same percentage, if any, by which the Consumer Price Index figure for the last calendar month preceding the extension period shall have increased over the Consumer Price Index figure for the same calendar month of the preceding calendar year. "Consumer Price Index" shall refer to the Consumer Price Index:, All Urban Consumers, Los Angeles - Anaheim - Riverside Metropolitan Area (All Items), compiled by the U.S. Department of Labor, Bureau of Labor Statistics (1982-1984 = 100). If the 1982-1984 base of the Consumer Price index should be changed, then the new base shall be converted to the 1982-1984 base and the base as so converted shall be used. In the event the Bureau shall cease to publish the Consumer Price Index:, then the successor or most nearly comparable index, shall be used. In no event or condition which, with shall the giving of notice or the passage of Base Rent be decreased at any time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment pursuant to the Title Policyprovisions of this paragraph notwithstanding any decrease in the Consumer Price Index. In the event an increase in Base Rent for an extension period is not, insuring the priority and validity because of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that publishing date of the applicable Consumer Price Index, determinable as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance beginning of the Loan by extension period, Lessee shall continue to pay the Base Rent then in effect until the applicable increase is determined, at which time Lessee shall pay Lessor an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to such increase multiplied by the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with number of months since the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as beginning of the Original Maturity Date, does extension period for which Lessee had not exceed fifty-nine percent (59.0%); provided, however, in yet paid the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowedincreased Base Rent.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease Net (William Lyon Homes)
Options to Extend. (a) The Borrower shall have may request an extension of the option to extend Original Maturity Date (the “First Option to ExtendExtension Option”) to the term of the Loan date twelve (12) months from the Original Maturity Date (for purposes of this Section, the “Original First Extension Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionprecedent:
(i) The Borrower shall provide the Lender with written notice of the Borrower’s request to exercise the First Extension Option to Extend in the form attached hereto as Exhibit C not more than ninety (90) days but not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before such notice, the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice “First Option to extendExtend Notice”).;
(ii) As No Default shall have occurred and be continuing as of either or both of (i) the First Extension DSCR Test Date, and (ii) the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.;
(iii) The Borrower shall execute or cause the execution of all documents reasonably required by the Lender to exercise the First Extension Option and shall deliver to Extend.
(iv) [intentionally omitted].
(v) If required by the Lender, at the Borrower’s sole cost and expense, the issuance such title insurance endorsements reasonably required by the Title CompanyLender;
(iv) On the First Extension DSCR Test Date, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment the Borrower shall pay to the Title Policy, insuring the priority and validity Lender an extension fee equal to 0.25% of the Security InstrumentOutstanding Credit Exposure as of the First Extension DSCR Test Date; and
(v) As of the First Extension DSCR Test Date, the Project shall have a Debt Service Coverage Ratio of not less than 1.10 to 1.0.
(vib) The Borrower shall have delivered evidence reasonably satisfactory to Lender that as may request an extension of the Original First Extension Maturity Date (the Property has achieved a Debt Yield “Second Extension Option”) to the date twelve (12) months from the First Extension Maturity Date (the “Second Extension Maturity Date”), upon satisfaction of at least 8.0%; provided, however, in each of the event such required minimum Debt Yield is not achieved, then Borrower shall either following conditions precedent:
(i) pay down The Borrower shall provide the outstanding principal balance Lender with written notice of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with request to exercise the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does Second Extension Option not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within more than ninety (90) days of but not less than thirty (30) days prior to the Original First Extension Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.Date (such notice, the “Second Option to Extend Notice”);
(viiiii) On No Default shall have occurred and be continuing as of either or before both of (i) the Original Second Extension DSCR Test Date, and (ii) the First Extension Maturity Date, and the Borrower shall so certify in writing;
(iii) The Borrower shall execute or cause the execution of all documents reasonably required by the Lender to exercise the Second Extension Option and shall deliver to the Lender, at the Borrower’s sole cost and expense, such title insurance endorsements reasonably required by the Lender;
(iv) On the Second Extension DSCR Test Date, the Borrower shall pay to the Lender an extension fee in the amount of equal to 0.25% of the total commitment amount Outstanding Credit Exposure as of the Loan, in immediately available funds.Second Extension DSCR Test Date; and
(ixv) Borrower As of the Second Extension DSCR Test Date, the Project shall have delivered a Debt Service Coverage Ratio of not less than 1.25 to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants1.0. Except as modified by this the First Extension Option to Extendand the Second Extension Option, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by the Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Construction Loan Agreement (Global Growth Trust, Inc.)
Options to Extend. 15.1 So long as Juniper Networks, Inc. (or a Permitted Assignee) is the Tenant hereunder, and subject to the condition set forth in clause (b) below, Tenant shall have two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for a period of five (5) years from the expiration of the last year of the Lease Term (the "First Extension Period"), and the second (the "Second Extension Period") for a period of five (5) years from the expiration of the First Extension Period, subject to the following conditions:
(a) Borrower shall have the Each option to extend shall be exercised, if at all, by notice of exercise given to Landlord by Tenant not more than twelve (12) months nor less than nine (9) months prior to the “expiration of the last year of the Lease Term or the expiration of the First Option Extension Period, as applicable;
(b) Anything herein to Extend”the contrary notwithstanding, if Tenant is in default under any of the material terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Extension Period, as applicable, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a timely fashion, the Lease shall be extended for the term of the Loan from the Original Maturity Date (for purposes applicable extension period upon all of this Section, “Original Maturity Date”), to the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and Lease, provided that the other Loan Documents Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, determined as modified and approved by Lender shall remain unmodified and in full force and effectset forth below, with annual increases as determined as part of the process set forth below.
15.3 Within 30 days after receipt of Tenant's notice of exercise, Landlord shall notify Tenant in writing of Landlord's estimate of the Base Monthly Rent for the first year of the applicable extension period, and Landlord's estimate of annual increases. For purposes hereof, "Fair Market Rent" shall mean collectively, (b1) Borrower Base Monthly Rent for the first year of the applicable extension period and (2) the annual increases determined at the time Base Monthly Rent for the first year is determined. Within 30 days after receipt of such notice from Landlord, Tenant shall have a second option the right either to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice accept Landlord's estimate of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met Fair Market Rent or (ii) deliver elect to Lender an Acceptable Letter arbitrate Landlord's estimate of Credit in a stated amount equal Fair Market Rent, such arbitration to be conducted pursuant to the Second Extension Loanprovisions hereof. Failure on the part of Tenant to require arbitration of Fair Market Rent within such 30-to-Value Rebalance Amount The valuation date of such appraisal day period shall be within ninety (90) days constitute acceptance of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.Fair
Appears in 1 contract
Options to Extend. As consideration for the consent of Landlord herein set forth, Lease Paragraph 43 (a) Borrower shall have the option to extend (the “First Second Five Year Option to Extend”) and Paragraph 3 to Amendment No. 3 dated April 16, 1997 (“Third Five Year Option to Extend”) are hereby deleted in their entirety and shall be replaced with the term of following:
A. SECOND FIVE YEAR OPTION TO EXTEND: Landlord hereby grants to Tenant an option to extend this Lease Agreement (“Option to Extend” or the Loan from the Original Maturity Date “Option”) for an additional five years (for purposes of this Section, “Original Maturity DateSecond Extended Term”), to the First Extended Maturity Date, ) upon satisfaction of each and every one of the following conditions precedent in Lender’s discretionterms and conditions:
(i1) Borrower Tenant shall provide Lender with give Landlord written notice of BorrowerTenant’s request to exercise the First of this Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than at least one hundred twenty eighty (120180) days prior to the Original Maturity Date expiration of the Lease Term pursuant to Paragraph A hereof (not later than April 3, 2011), in which notice may event the Term of the Lease shall be revoked by Borrower on or before considered extended for an additional five (5) years, subject to the Original Maturity DateBasic Rent set forth below and with: (i) the Basic Rent to be determined pursuant to Paragraph 2) below; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As management fee and the terms and conditions subject to amendment by Landlord (Landlord, in its sole and absolute discretion, may, but is not required to, incorporate its then current Lease provisions that are standard in Landlord’s leases for comparable buildings as of the Original Maturity Date, no Default shall exist, date of Tenant’s exercise of its Option to Extend); and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower this Paragraph 2.A thereafter deleted. In the event that Tenant fails to timely exercise Tenant’s Option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and the Lease shall continue in full force and effect for the full remaining term hereof, absent this Paragraph 2.
2) In the event Tenant timely exercises Tenant’s Option to Extend as set forth herein, Landlord shall, within fifteen (15) days after receipt of Tenant’s exercise of the Option, advise Tenant of any changes in the management fee and the terms and conditions as referenced in Paragraph 2.A.l(ii) above) and the Basic Rent (which shall not be less than the Basic Rent for the fifth year of the current Term) required for the Extended Term of the Lease to make the Basic Rent for the Premises comparable to the then current market triple net basic rent for comparable properties either (i) then owned in whole or in part by the above mentioned Landlord or by members of its immediate family in the vicinity of the Premises or (ii) if not owned by Landlord or its family as stated herein, other third party properties in the vicinity of the Premises. Tenant shall have five (5) days after receipt from the Landlord of said new terms and conditions and Basic Rent in which to accept said new terms and conditions and Basic Rent and enter into written documentation confirming same. In the event Tenant fails to execute said written documentation confirming said new teens and conditions and Basic Rent for the Second Extended Term of Lease within said five (5) day period, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining term hereof absent of this Paragraph 2, with Landlord having no further responsibility or cause the execution of all documents reasonably required by Lender obligation to exercise the First Tenant with respect to Tenant’s Option to Extend.
(iv3) [intentionally omitted]It is agreed that if Tenant is at any time prior to exercising its Option to Extend in default of this Lease and has failed to cure the default in the time period allowed, this Paragraph 2 shall be null and void and Tenant will have no further rights under this Paragraph. It is further agreed that if Tenant has exercised its Option to Extend and is subsequently in default, and has failed to cure the default in the time period allowed by the Lease at any time prior to, or at the time the lease commences on the Second Extended Term, Landlord may at its sole and absolute discretion, cancel Tenant’s Option to Extend, and this Lease will continue in full force and effect for the full remaining Term hereof, absent of this Paragraph 2.
4) The Option rights of Tenant under this Paragraph 2.A, and the Second Extended Term thereunder, are granted for Tenant’s personal benefit and may not be assigned or transferred by Tenant, except as provided for in Lease Paragraph 57 (v“Permitted Assignments and Subleases”), either voluntarily or by operation of law, in any manner whatsoever.
5) If required Notwithstanding anything to the contrary in this Paragraph, this Option to Extend is automatically forfeited by LenderTenant (without notice from Landlord) in the event Tenant is, at Borrowerany time during the Term of this Lease, in default of said Lease and if Tenant does not completely cure said default within five days for a monetary default and thirty days for a non-monetary default (or such longer time as permitted by cure in the Lease Agreement). In the event said Option to Extend is forfeited as stated herein, Tenant shall have no further Option to Extend this Lease.
B. THIRD FIVE (5)-YEAR OPTION PERIOD: Provided Tenant has extended the Lease for an additional five year period as set forth in Paragraph A above, Landlord hereby grants to Tenant another Option to Extend the Lease Agreement upon the following terms and conditions;
1) Tenant shall give Landlord written notice of Tenant’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, exercise of any endorsements deemed necessary by Lender for attachment this Option to Extend at least one hundred eighty (180) days prior to the Title Policy, insuring the priority and validity expiration of the Security Instrument.
Basic Term hereof (vinot later than April 3, 2016), in which event the Term of the Lease shall be considered extended for an additional five (5) Borrower shall have delivered evidence reasonably satisfactory years (“Third Extended Term”) subject to Lender the Basic Rent set forth below and with: (i) the Basic Rent to be determined pursuant to Paragraph 2) below; (ii) the management fee and the terms and conditions subject to amendment by Landlord (Landlord, in its sole and absolute discretion, may, but is not required to, incorporate its then current Lease provisions that are standard in Landlord’s leases for comparable buildings as of the Original Maturity Date date of Tenant’s exercise of its Option to Extend); and (iii) this Paragraph 2.B thereafter deleted. In the Property has achieved a Debt Yield event that Tenant fails to timely exercise Tenant’s Option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and the Lease shall continue in full force and effect for the full remaining term hereof, absent this Paragraph 2.B.
2) In the event Tenant timely exercises Tenant’s Option to Extend as set forth herein, Landlord shall, within fifteen (15) days after receipt of at least 8.0%; providedTenant’s exercise of option, however, advise Tenant of any changes in the event such management fee and the terms and conditions as referenced in Paragraph 2.B.1(ii) above and Basic Rent (which shall not be less than the Basic Rent for the fifth year of the Second Extended Term) required minimum Debt Yield is not achieved, for the Third Extended Term of the Lease to make the Basic Rent for the Premises comparable to the then Borrower shall current market triple net basic rent for comparable properties either (i) pay down then owned in whole or in part by the outstanding principal balance above mentioned Landlord or by members of its immediate family in the vicinity of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, Premises or (ii) deliver if not owned by Landlord or its family as stated herein, other third party properties in the vicinity of the Premises. Tenant shall have five (5) days after receipt from the Landlord of said new terms and conditions and Basic Rent in which to Lender an Acceptable Letter accept said new terms and conditions and Basic Rent and enter into written documentation confirming same. In the event Tenant fails to execute said written documentation confirming said new terms and conditions and Basic Rent for the Third Extended Term of Credit Lease within said five (5) day period, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in a stated amount equal full force and effect for the full remaining term hereof absent of this Paragraph 2.B, with Landlord having no further responsibility or obligation to Tenant with respect to Tenant’s Option to Extend.
3) It is agreed that if Tenant is at any time prior to exercising its Option to Extend in default of this Lease and has failed to cure the First Extension Debt Yield Shortfall Amountdefault in the time period allowed, this Paragraph 2.B will be null and void and Tenant will have no further rights under this Paragraph. Any principal balance reduction shall reduce LenderIt is further agreed that if Tenant has exercised its Option to Extend and is subsequently in default, and has failed to cure the default in the time period allowed by the Lease at any time prior to, or at the scheduled Commencement Date of the Third Extended Term, Landlord may at its sole and absolute discretion, cancel Tenant’s commitment by a like amount Option to Extend, and this Lease will continue in full force and effect for the full remaining Term hereof, absent of this Paragraph Z.B.
4) The Option rights of Tenant under this Paragraph 2.B and the Third Extended Term thereunder, are granted for Tenant’s personal benefit and may not be re-borrowed.
assigned or transferred by Tenant, except as provided for in Lease Paragraph 57 (vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any “Permitted Assignments and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practicesSubleases”), confirming either voluntarily or by operation of law, in any manner whatsoever, 5) Notwithstanding anything to the satisfaction of Lender that the Loan-to-Value Percentagecontrary in this Paragraph 2.B, as of the Original Maturity Date, does not exceed fifty-nine percent this Option to Extend is automatically forfeited by Tenant (59.0%); provided, however, without notice from Landlord) in the event Tenant is, at any time during the Term of this Lease, in default of said Lease and if Tenant does not completely cure said default within five days for a monetary default and thirty days for a non-monetary default (or such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan longer time as permitted by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee cure in the amount of 0.25% of Lease Agreement). In the total commitment amount of the Loanevent said Option to Extend is forfeited as stated herein, in immediately available funds.
(ix) Borrower Tenant shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First no further Option to ExtendExtend this Lease. EXCEPT AS MODIFIED HEREIN, the terms all other terms, covenants, and conditions of this Agreement and the other Loan Documents said October 31, 1989 Lease Agreement, as modified and approved by Lender heretofore amended, shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Maxtor Corp)
Options to Extend. Landlord hereby grants to Tenant three (a3) Borrower shall have the option options to extend (the “First Option Option(s) to Extend”) the Term for the Property for an additional ten (10) years per extended option term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity DateOption Term(s)”), to the First Extended Maturity Date, upon satisfaction of each and every one all of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the First Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents Lease as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term amended below. Each of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option Options to Extend in the form attached hereto as Exhibit C shall be deemed automatically renewed unless Seller elects to cancel any such option upon not less than thirty eighteen (3018) days and not more than one hundred twenty (120) days months prior to the First Extended Maturity Date (which notice may be revokedwritten notice, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As time being of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%)essence; provided, however, that Tenant has not been in material monetary default, or a material non-monetary default of this Lease more than two (2) times during any one (1) calendar year of the Term, as extended. In the event such fair market value that Tenant has been in monetary default, or a material non-monetary default of this Lease more than two (2) times during any one calendar year of the Term, as extended, Landlord may elect to either terminate Tenant’s Options to Extend or may predicate Landlord’s acceptance of Tenant’s Options to Extend on receipt of additional financial assurance from Tenant as Landlord may determine. The Term, as defined in Paragraph 2 hereof, shall also include any Options to Extend properly exercised hereunder. If notice of exercise of any Option to Extend is not adequate timely given, all further Options to meet Extend shall automatically expire. The rent for each Option Term shall consist of Base Rent equal to the required Loan-to-Value Percentage, then Borrower shall either greater of (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender then fair market rental rate for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is meteach individual Property, or (ii) deliver the then current rent, together with and all other charges due and payable under this Lease. After the first Lease Year of each Option Term, the Base Rent shall increase annually by the applicable CPI as set forth in Paragraph 3.2. The Options to Lender an Acceptable Letter of Credit in a stated amount equal Extend are personal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount Tenant and may not be re-borrowedassigned without Landlord’s written consent which may be withheld in its sole discretion.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract
Sources: Lease Agreement (Invacare Corp)
Options to Extend. (a) Borrower Subject to the terms of this Paragraph 1 and Paragraph 4, entitled “Options,” Landlord hereby grants to Tenant the option (each, an “Extension Option” and collectively, the “Extension Options”) to extend the Term of the Lease with respect to the entire Premises for up to five (5) additional periods of five (5) years (each, an “Option Term” and collectively, the “Option Terms”), on the same terms, covenants and conditions as provided for in the Lease during the immediately preceding Term, except that (i) Tenant shall have no further extension rights (other than as expressly set forth herein), and (ii) Basic Rent shall be established based on ninety-five percent (95%) of the option “fair market rental rate” for the Premises for the applicable Option Term as defined and determined in accordance with the provisions of this Paragraph 1 below.
(b) Each Extension Option must be exercised, if at all, by written notice (“Extension Notice”) delivered by Tenant to extend Landlord no earlier than the date which is three hundred sixty (360) days, and no later than the date which is two hundred seventy (270) days, prior to the expiration of the immediately preceding Term of the Lease.
(c) The term “fair market rental rate” as used in this Rider 1 shall mean the annual amount per square foot, projected during the relevant period, that a willing, comparable, non-equity, renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, comparable, institutional landlord of a comparable Class “A” quality industrial building located in the greater South Bay area (“Comparison Area”) would accept, at arm’s length (what Landlord is accepting in current transactions for the Building or other buildings in the Project may be considered), for space comparable in size (including the existing mezzanine square footage of approximately 13,135 square feet of space, whether or not Tenant removes the same during the Term of the Lease) and quality as the leased area at issue taking into account the age, quality 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, industrial space availability, tenant size, tenant improvement allowances, operating expenses and allowance, parking charges, and any other economic matters then being charged by Landlord or lessors of such similar industrial buildings, however, not taking into account any improvements exclusively paid for by Tenant (i.e., any improvements paid for with the Allowance shall be deemed paid for by Landlord and not Tenant). Notwithstanding anything herein to the contrary, in no event will Basic Rent decrease from that payable in the last year of the immediately previous Lease Term as a result of the fair market rental rate determination provided for in this Paragraph 1.
(d) Landlord’s determination of fair market rental rate shall be delivered to Tenant in writing not later than sixty (60) days following Landlord’s receipt of Tenant’s Extension Notice. Tenant will have thirty (30) days (“Tenant’s Review Period”) after receipt of Landlord’s notice of the fair market rental rate within which to accept such fair market rental rate or to object thereto in writing. Tenant’s failure to object to the fair market rental rate submitted by Landlord in writing within Tenant’s Review Period will conclusively be deemed Tenant’s approval and acceptance thereof. If Tenant objects to the fair market rental rate submitted by Landlord within Tenant’s Review Period, then Landlord and Tenant will attempt in good faith to agree upon such fair market rental rate using their best good faith efforts. If Landlord and Tenant fail to reach agreement on such fair market rental rate within fifteen (15) days following the expiration of Tenant’s Review Period (the “First Option to Extend”) the term of the Loan from the Original Maturity Date (for purposes of this Section, “Original Maturity Outside Agreement Date”), then each party’s determination will be submitted to appraisal in accordance with the First Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:provisions below.
(i) Borrower Landlord and Tenant shall provide Lender with written notice each appoint one independent, unaffiliated real estate broker (referred to herein as an “appraiser” even though only a broker) who has been active over the five (5) year period ending on the date of Borrower’s request to exercise the First Option to Extend such appointment in the form attached hereto leasing of comparable industrial properties in the Comparison Area. Each such appraiser will be appointed within thirty (30) days after the Outside Agreement Date.
(ii) The two (2) appraisers so appointed will within fifteen (15) days of the date of the appointment of the last appointed appraiser agree upon and appoint a third appraiser who shall be qualified under the same criteria set forth herein above for qualification of the initial two (2) appraisers.
(iii) The determination of the appraisers shall be limited solely to the issue of whether Landlord’s or Tenant’s last proposed (as Exhibit C of the Outside Agreement Date) new Basic Rent for the Premises is the closest to the actual new Basic Rent for the Premises as determined by the appraisers, taking into account the requirements of Subparagraph 1(c) and this Subparagraph 1(e) 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 new Basic Rent, and shall notify Landlord and Tenant thereof.
(v) The decision of the majority of the three (3) appraisers shall be binding upon Landlord and Tenant and neither party will have the right to reject the determination or undo the exercise of the Extension Option. The cost of each party’s appraiser shall be the responsibility of the party selecting such appraiser, and the cost of the third appraiser (or arbitration, if necessary) shall be shared equally by Landlord and Tenant.
(vi) If either Landlord or Tenant fails to appoint an appraiser within the time period in Subparagraph 1(e)(i) herein above, the appraiser appointed by one of them shall reach a decision, notify Landlord and Tenant thereof and such appraiser’s decision shall be binding upon Landlord and Tenant and neither party will have the right to reject the determination or undo the exercise of the Extension Option.
(vii) If the two (2) appraisers fail to agree upon and appoint a third appraiser, both appraisers shall be dismissed and the matter to be decided shall be forthwith submitted to binding arbitration under the provisions of the American Arbitration Association.
(viii) In the event that the new Basic Rent is not established prior to the end of the immediately previous Term of the Lease, the Basic Rent immediately payable at the commencement of the applicable Option Term shall be the Basic Rent paid by Tenant at the expiration of the immediately preceding Term. Notwithstanding the above, once the fair market rental is determined in accordance with this section, the parties shall settle any overpayment or underpayment on the next Basic Rent payment date falling not less than thirty (30) days and not more than one hundred twenty (120) days prior to the Original Maturity Date (which notice may be revoked by Borrower on or before the Original Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with after such notice to extend)determination.
(ii) As of the Original Maturity Date, no Default shall exist, and to Borrower’s knowledge no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the First Option to Extend.
(iv) [intentionally omitted].
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the Original Maturity Date the Property has achieved a Debt Yield of at least 8.0%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Debt Yield Shortfall Amount. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the Original Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan by an amount (the “First Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the First Extension Loan-to-Value Rebalance Amount. The valuation date of such appraisal shall be within ninety (90) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(viii) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of the total commitment amount of the Loan, in immediately available funds.
(ix) Borrower shall have delivered to Lender an updated Property Condition Report for the Property in form reasonably acceptable to Lender.
(x) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this First Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
(b) Borrower shall have a second option to extend (the “Second Option to Extend”) the term of the Loan from the First Extended Maturity Date, to the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent in Lender’s discretion:
(i) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend in the form attached hereto as Exhibit C not less than thirty (30) days and not more than one hundred twenty (120) days prior to the First Extended Maturity Date (which notice may be revoked, by Borrower on or before the First Extended Maturity Date; provided Borrower shall pay all costs and expenses incurred by Lender in connection with such notice to extend).
(ii) As of the date the First Extended Maturity Date, no Default shall exist, and to Borrower’s knowledge, no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall exist, and Borrower shall so certify in writing.
(iii) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend.
(iv) Lender shall have received, at Borrower’s sole expense, a written appraisal prepared in conformance with the requirements of FIRREA, as well as any other applicable rules and/or regulations from any and all applicable governmental authorities (subject to review and adjustment by Lender consistent with Lender’s standard practices), confirming to the satisfaction of Lender that the Loan-to-Value Percentage, as of the First Extended Maturity Date, does not exceed fifty-nine percent (59.0%); provided, however, in the event such fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall either (i) pay down the outstanding principal balance of the Loan (the “Second Extension Loan-to-Value Rebalance Amount”) such that said Loan-to-Value Percentage is met or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Loan-to-Value Rebalance Amount The valuation date of such appraisal shall be within ninety (90) days of the First Extended Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(v) If required by Lender, at Borrower’s sole cost and expense, the issuance by the Title Company, and Lender’s receipt, of any endorsements deemed necessary by Lender for attachment to the Title Policy, insuring the priority and validity of the Security Instrument.
(vi) Borrower shall have delivered evidence reasonably satisfactory to Lender that as of the First Extended Maturity Date the Property has achieved a Debt Yield of at least 8.25%; provided, however, in the event such required minimum Debt Yield is not achieved, then Borrower shall (i) pay down the outstanding principal balance of the Loan by an amount (the “Second Extension Debt Yield Shortfall Amount”) such that said minimum Debt Yield is met, or (ii) deliver to Lender an Acceptable Letter of Credit in a stated amount equal to the Second Extension Debt Yield Shortfall Amount Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be re-borrowed.
(vii) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of 0.25% of total commitment amount of the Loan, in immediately available funds.
(viii) Guarantor shall be in compliance with the Guarantor Financial Covenants. Except as modified by this Second Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.
Appears in 1 contract