Option to Extend. Tenant is granted an option to extend the term of the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.
Appears in 3 contracts
Samples: Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.)
Option to Extend. Tenant On the conditions (which conditions LESSOR may waive, at its election, by written notice to LESSEE at any time) that LESSEE is granted an option to extend the term of the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default of its covenants and obligations under the Lease Agreement at beyond applicable notice and cure periods, both as of the time of exercise of the option Option to Extend, as hereinafter defined, and at the commencement of the Extension Period, as hereinafter defined, then LESSEE shall have the right to extend the term hereof (the “Option to Extend”) for one additional term of five years, ending on March 31, 2019 (the applicable extension period“Extension Period’), to commence immediately upon the expiration of the then current term. If Tenant elects LESSEE may exercise such Option to exercise this option, Tenant shall exercise said option only Extend by giving written notice actually received by Landlord not to LESSOR (the “Extension Notice”) on or before the date which no less than three hundred sixty-five twelve (36512) days months prior to the expiration date of the initial Lease then current Term. The burden Such Extension Period shall be upon the same terms and conditions of actual delivery of such notice is on this Lease, except that the Tenant. In Base Rent payable shall be set at the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the then fair market rental value, as set forth above, and Tenant’s support effective rent for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If In no event, however, shall the rental Base Rent be less than the then-current Base Rent at the expiration of the current Term. For the purpose of this Section, fair market effective rent shall mean the Base Rent plus such additional financial terms in the nature of rent and rent adjustments customarily then being included in leases for similar space within the greater Waltham area. LESSEE shall, during the Extension Period, continue to pay its proportionate share of LESSOR’s Real Estate Taxes and Operating Costs. Said fair market effective rent for the applicable extension period has not been Leased Premises shall be agreed uponupon by LESSOR and LESSEE; provided, as set forth abovehowever, at least One Hundred Twenty if LESSOR and LESSEE are unable to agree on said fair market effective rent within thirty (12030) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental date of the Extension Notice, said fair market effective rent shall be promptly submitted to arbitrationconclusively determined by three (3) appraisers. Tenant shall select, within Within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selectionday period, they shallLESSOR and LESSEE shall each select an appraiser, who shall select a third. Should the two appraisers fail to agree on a third within fifteen (15) days thereafterof the date on which such appraisers have been appointed, select a third agent with or if either LESSOR or LESSEE shall fail to appoint an appraiser within the qualificationstime provided, referred to above, and if they do not so agree on a third agent, the third arbitrator such appraiser shall be appointed by the presiding judge American Institute of Appraisers. Each party shall bear the cost of the Superior Court in appraiser selected by such party, and the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection cost of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition appraiser shall be on an ex parte basis with notice shared equally by LESSOR and opportunity by Landlord LESSEE. If the three appraisers are unable to attend agree upon such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, effective rent within a thirty fifteen (3015) day period days of the appointment of the third agent and if they cannot agree upon the sameappraiser, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as effective rent shall be that determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid appraiser not selected by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueeither LESSOR or LESSEE.
Appears in 3 contracts
Samples: Tecogen Inc., Tecogen Inc., Tecogen Inc
Option to Extend. Upon expiration of the primary term of this Lease, Tenant is granted an option to extend the term of the this Lease Agreement for one (1) additional three sixty (360) year month period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on with the same terms and conditions as are included in this Lease, subject, however, to renegotiation of the rent provided in the Lease Agreement with the exception paragraph 4 of Base Monthly Rentthis Lease. The initial Base Monthly Rent for primary term and the extension period shall terms will be equal collectively referred to in this Lease as the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc“term.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that ” Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by notify Landlord within not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination expiration of the rental shall be promptly submitted primary term of this Lease or prior to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt each extension term of Tenant’s informationexercise of its option to extend this Lease, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for provided that in the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth abovecircumstances described in paragraph 13, the Landlord’s reasonable opinion of value options to extend the term may be exercised earlier as provided in paragraph 13, and if the option to extend is exercised earlier as provided in paragraph 13, nevertheless, the rental payable as provided in paragraph 4 shall be determined at the rental value for time and in the manner provided in paragraph 4 and this paragraph 3. During the following sixty (60) day period, Tenant and Landlord shall negotiate and arrive at an agreement or disagreement of the amount of rent to be paid during the applicable extension term. If Landlord fails to nominate an agent, as set forth above, and Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rentrent to be paid during the applicable extension term, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with Landlord and Tenant shall at the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge end of the Superior Court in sixty (60) day period enter into a new written lease or an amendment agreement setting forth the County in which the Leased Premises are located. amount of rental Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time pay pursuant paragraph 4 for the selection applicable extension term and any other additional terms to which Landlord and Tenant have agreed. If Tenant and Landlord fail to agree upon the rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, a fair market appraisal comparison of comparable properties will be completed by an independent party upon which the third agentLandlord and Tenant may use to negotiate the amount of rent to be paid during the applicable extension term. If Tenant and Landlord fail to agree upon the rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, as set forth aboveeither Landlord or Tenant may, requesting by written notice to the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and other party given within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a ensuing thirty (30) day period period, elect to invoke the arbitration provisions of this Lease to determine the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, rent Tenant shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent required to pay pursuant to paragraph 4 for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueterm.
Appears in 3 contracts
Samples: Lease Agreement (Rightnow Technologies Inc), Lease Agreement (Rightnow Technologies Inc), Lease Agreement (Rightnow Technologies Inc)
Option to Extend. Provided (i) Tenant (as used in this Section 16.16, the term "Tenant" shall also include any Permitted Transferee that succeeds to Tenant's interest under Article 11, above) is not in Default hereunder at the time it exercises this option, (ii) the creditworthiness of Tenant is granted an no less than on the date hereof, (iii) Tenant originally named herein remains in possession of all or substantially all of the Leased Premises, Tenant shall have the option to extend the term of the Lease Agreement Original Term for one (1) additional three (3) year periodsuccessive periods of five (5) years each (the "Extension Term(s)"). The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension Extension Term shall be on upon the same terms and conditions as provided contained in the Lease Agreement with during the exception of Base Monthly Rent. The initial Base Monthly Rent for Lease Term (the "Original Term") except (i) this provision giving five (5) extension period options shall be equal amended to reflect the fair market rental for remaining options to extend, if any and (ii) the Leased Premises Minimum Annual Rent shall be adjusted as of set forth below (the date six "Rent Adjustment"). Tenant shall exercise such option by (6i) delivering to Landlord, no later than sixteen (16) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Original Term or, if applicable, the Extension Term. The fair market rental shall be determined (a) without consideration for , written notice of Tenant's desire to extend the particular use of Original Term or, if applicable, the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.)Extension Term, and (dii) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject delivering to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) business days of the expiration receipt of the Initial Meeting PeriodRent Adjustment, referred written notice of its rejection thereof (which rejection shall terminate Tenant's option to aboveextend), or that Tenant disputes Landlord's determination of the Rental Adjustment and shall include Tenant's good faith determination of what the Rental Adjustment should be. In the case of a licensed real estate agent with at least five years commercial experience in notice disputing the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Rental Adjustment, Landlord and Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have mutually work together for a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days to resolve the dispute and, if unable to agree upon the Rental Adjustment within said period, Landlord and Tenant shall in good faith participate in non-binding arbitration of the expiration date Rental Adjustment for a period of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period days. Unless Landlord otherwise agrees in writing, Tenant's failure to timely exercise such option shall waive it and any succeeding option. Landlord shall notify Tenant of the appointment amount of the third agent Rent Adjustment no later than sixty (60) days after receipt of Tenant's exercise of its option. If Tenant properly exercises its option to extend, Landlord and if they cannot agree upon Tenant shall execute an amendment to the same, as set forth above, Lease reflecting the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent terms and the cost conditions of the third agent, if necessary, shall be paid by the TenantExtension Term. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Minimum Annual Rent for the applicable extension period has not been determined as Extension Term shall be an amount equal to the Minimum Annual Rent then being quoted by Landlord to prospective tenants of the commencement Building for space of comparable size and quality and with similar or equivalent improvements as are found in the applicable extension periodBuilding, Tenant shall pay an estimated Base and if none, then in similar buildings in the vicinity, excluding free rent and other concessions. The Minimum Monthly Rent of One Hundred Fifteen percent shall be an amount equal to one-twelfth (115%1/12) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Minimum Annual Rent for the applicable extension period. Any surplus Extension Term and shall be a credit for Base Monthly Rent to become thereafter duepaid at the same time and in the same manner as provided in the Lease.
Appears in 3 contracts
Samples: Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.)
Option to Extend. Tenant is granted an Lessor hereby grants to Lessee two successive options to extend this Lease for additional terms of five (5) years each commencing on the first day after the Expiration Date of the previous term. Lessee must exercise the option to extend extend, if at all, by giving Lessor written notice of such exercise not less than twelve (12) months prior to the expiration date of the then current term. Upon the exercise of the option to extend, the term of this Lease shall be extended through the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part expiration date of the Lease. Such extension shall be Renewal Term on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period contained herein, except that there shall be equal no option to extend the fair market rental for term of this Lease beyond the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below)Second Renewal Term, whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than and the Base Monthly Rent plus three percent (3%) as of during the expiration of the initial Lease Term. The fair market rental Renewal Terms shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paidpursuant to this Section. The Base Monthly Rent for each extension period Renewal Term shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise greater of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the nameBase Monthly Rent scheduled for the final month of the preceding term (the initial term or the First Renewal Term, addressas the case may be), company affiliation, and phone number of such agent or (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rentalbase rental value of the Premises. If Lessor and Lessee agree to be reasonable in their negotiation of rent for the two agents do not agree upon the rent, as set forth above, within option periods. Lessor and Lessee shall have thirty (30) days after Lessee provides Lessor of their selection, they shall, within fifteen (15) days thereafter, select a third agent with its notice to exercise its Option to Renew to set the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time rent for the selection of option period(s). If Lessor and Lessee are unable to establish the third agent, as set forth above, requesting rent for the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and option period(s) within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of then Lessor and Lessee shall each appoint an appraiser with not less than ten (10) years experience in real estate appraisal in the appointment of Bellevue real estate market, to set the third agent and if they cannot agree upon rent for the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreementoption period(s). If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable rents proposed by Tenant to Landlord each appraiser are within ten (10%) days percent of each other, then the rent for the option period(s) shall be the average of the determination two rents. If the rents proposed by each appraiser are greater than ten (10%) percent from each other then the two appraisers will select a third appraiser who shall also have at least (10) years real estate appraisal experience in the Bellevue real estate market, to set the rent for the option period(s). The rent established by the third appraiser will be binding on Lessor and Lessee and will be no less than the rent proposed by Lessee and no higher than the rent proposed by Lessor. The total cost of all of the Base Monthly Rent for appraiser's fees will be the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueresponsibility of the party whose proposed rental rate is farthest from that of the final rental rate established by the appraisers.
Appears in 2 contracts
Samples: Industrial Lease (Icos Corp / De), Lease Agreement (Icos Corp / De)
Option to Extend. Tenant is granted an option shall have the right, to be exercised as hereinafter provided, to extend the term of the this Lease Agreement for one 1 period of 3 years (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned“Extension Term”), voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same following terms and conditions as provided in and subject to the Lease Agreement with the exception of Base Monthly Rentlimitations hereinafter set forth. The initial Base Monthly Extension Term shall be upon the same terms, covenants and conditions as in this Lease, except that Basic Rent shall be the Fair Market Basic Rent for such space on the extension period date such Extension Term shall be equal commence. Tenant shall notify Landlord of its desire to extend the fair market rental term for the Leased Premises as of Extension Term by notifying Landlord in writing (the date six (6“Extension Notification”) at least 9 months prior to the commencement of the applicable expiration period or on or about the date of the final determination by Extension Term; if Tenant fails to timely deliver the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver Extension Notification to Landlord, then Tenant’s opinion option to extend shall automatically terminate. Upon Landlord’s receipt of the fair market rental valueExtension Notification, as set forth above, Landlord and Tenant’s support for such figure (i.e. comparable lease information). Landlord Tenant shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor make a good faith effort to agree upon the fair market rental Fair Market Basic Rent of the Leased Premises. If the rental Premises for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (Extension Term. “Initial Meeting Period”), then the determination Fair Market Basic Rent” shall mean that net annual basic rent per rentable square foot of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension periodExtension Term that a willing credit-worthy tenant would pay and that a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, quality, size and location, with neither party under a compulsion for the appropriate term. In determining “Fair Market Basic Rent,” the parties shall consider rental rates, rent concessions, and other economic terms that a comparable landlord, acting reasonably and in good faith, is then offering or would then offer, to a lessee similar to Tenant shall pay an estimated Base Monthly for a similar term. In the event that Landlord and Tenant fail to agree upon the Fair Market Basic Rent within 90 days of One Hundred Fifteen percent (115%) Landlord’s receipt of the Base Monthly Rent due for Extension Notification, then Tenant’s extension right shall automatically terminate. Tenant’s option to extend as set forth in this Section shall be contingent upon this Lease being in full force and effect and Tenant not being in default in the last month prior to commencement performance of any of the applicable extension period. Any deficiency shall be payable by Tenant terms, covenants and conditions herein contained in respect to Landlord a matter as to which notice of default has been given hereunder which has not been remedied within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duetime limited in this Lease.
Appears in 2 contracts
Samples: Lease Agreement (G Iii Apparel Group LTD /De/), Lease Agreement (G Iii Apparel Group LTD /De/)
Option to Extend. Tenant is granted an shall have one (1) option to extend the term of this Lease for two (2) years at market rate (“Option Term”). Tenant shall give written notice to landlord no later than December 31, 2014. Option Term Rent: Tenant shall pay the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental following rent for the Leased Premises as of the date six (6) months prior Premises: Landlord and Tenant will attempt to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use agree upon a Fair Market Rental Value of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject satisfactory to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the both parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selectionTenant’s exercise of its option. If no agreement can be reached by the parties during that period, they shall, within fifteen (15) days thereafter, select a third agent with then the qualifications, referred to above, and if they do not so agree on a third agent, Base Monthly Rental for the third arbitrator Option Term shall be appointed determined by the presiding judge Fair Market Rental Value of the Superior Court in the County in which the Leased Premises are locatedas determined by comparison to premises of similar size located in or near the City of Fort Xxxxxxx, Colorado, having comparable development, use and density capability and such other characteristics as may be deemed relevant by a subject appraiser whose selection is outlined herein. Landlord shall select an independent MAI real estate appraiser with at least ten (10) years experience in appraising commercial real property in the City of Fort Xxxxxxx, Colorado (a “Qualified Appraiser”). The Qualified Appraiser selected by the Landlord shall be referred to as the “Landlord’s Appraiser”. Within thirty (30) days of being selected by the Landlord, the Landlord’s Appraiser shall determine the Fair Market Rental Value of the Leased Premises in accordance with the appraisal standards set forth above and shall immediately give the Landlord and the Tenant written notification of his determination. If the Tenant agrees with the Landlord’s Appraiser’s determination of the Fair Market Rental Value, the new Base Monthly Rental shall become effective beginning with the first month of the Option Term. If the Tenant does not agree with the Landlord’s Appraiser’s determination of Fair Market Rental Value, the Tenant shall be required have the right to petition such Court select its own Qualified Appraiser to determine the Fair Market Rental Value. If the Tenant does elect to appoint a Qualified Appraiser (the “Tenant’s Appraiser”), the Tenant shall select the Tenant’s Appraiser within thirty (30) business days after receiving the Landlord’s Appraiser’s determination of the Fair Market Rental Value. The Tenant’s Appraiser shall make his own determination of the Fair Market Rental Value in accordance with the provisions set forth above, within 30 business days of being selected by the Tenant and shall immediately give the Landlord and the Tenant written notice of his determination. If the Fair Market Rental Value as determined by the Landlord’s Appraiser and the Tenant’s Appraiser, respectively, differ by an amount which is equal to or less than 5% of the Fair Market Rental Value determined by the Landlord’s Appraiser, then the arithmetic mean of the two Fair Market Rental Values shall constitute the Fair Market Rental Value used to calculate the new Base Monthly Rental which will in effect for the Option Term. If the Fair Market Rental Value determined by the Landlord’s Appraiser and the Tenant’s Appraiser, respectively, differ by an amount which is greater than 5% then, within ten (10) business days of after the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice Appraiser and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Appraiser’s determination of the Fair Market Rental Value, the Landlord’s value or Appraiser and the Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot Appraiser shall agree upon the same, as set forth above, the and select a third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, Qualified Appraiser who shall be paid by independent of and have no prior or existing affiliation or relationship with either the TenantLandlord or the Tenant (the “Independent Appraiser”). The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within Within ten (10) business days of being appointed, the Independent Appraiser shall, after exercising his best professional judgment, choose either the Landlord’s Appraiser’s or the Tenant’s Appraiser’s determination of Fair Market Rental Value which the Independent Appraiser believes, in his best professional judgment, best represents the Fair Market Rental Value at that point in time. Upon making such a selection, the Independent Appraiser shall immediately give the Landlord and the Tenant written notice of this selection of the Fair Market Rental Value. The Fair Market Rental Value selected by the Independent Appraiser shall be used to calculate the new Base Monthly Rent for Rental which will be in effect during the applicable extension period. Any surplus Extension Option, and such selection by the Independent Appraiser shall be a credit for Base Monthly Rent to become thereafter duebinding and conclusive upon the Landlord and the Tenant. All appraisal fees required hereunder shall be shared equally by the Landlord and the Tenant.
Appears in 2 contracts
Samples: Lease Amendment (Advanced Energy Industries Inc), Lease Amendment (Advanced Energy Industries Inc)
Option to Extend. Provided Tenant is granted not in default in its obligations hereunder beyond any applicable cure period, Tenant shall have an option to extend this Lease for an additional term (hereinafter referred to as “Extended Term”) commencing immediately upon the expiration of the initial term hereof and continuing for a period of five (5) years, provided that Tenant proceeds strictly in accordance with the provisions of this Section III(c). Not later than two hundred seventy (270) days prior to the last day of the initial term hereof (the “Notice Date”), Tenant shall advise Landlord in writing that Tenant wishes to extend the term of this Lease (hereinafter referred to as “Tenant’s Extension Notice”). If at the time Landlord receives Tenant’s Extension Notice this Lease is in full force and effect without default on the part of the Tenant beyond any applicable cure period, then, during the next thirty (30) days, Landlord shall notify Tenant in writing of the Rent pursuant to Section IV of the Lease Agreement which shall be due for one (1) additional the Extended Term. The Rent specified by Landlord shall be that which the Landlord projects will be the fair market rent as of the commencement of the Extended Term, but in no event less than the rent for the last year during the initial term of this Lease. Within three (3) year period. The extensions described in this Addendum are personal to weeks after Landlord has given Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part notice of the Rent pursuant to Section IV of this Lease for the Extended Term, Tenant shall notify Landlord whether or not it agrees to pay such Rent. If Tenant shall agree in writing to pay such Rent, then this Lease shall be extended for the Extended Term without the execution of any additional documents, and each and every term and condition of this Lease shall apply during the Extended Term except only that the Rent specified in Section IV of this Lease during the Extended Term shall be that agreed upon by Landlord and Tenant, and the phrase “term of this Lease” shall be construed to mean the Extended Term of this Lease. Such extension If Tenant shall be on the same terms and conditions not agree in writing to pay such Rent, this Lease shall terminate as provided in Section III(a) of this Lease and Tenant shall vacate the Lease Agreement Premises on or before such date in accordance with the exception provisions of Base Monthly Rentthis Lease. The initial Base Monthly Rent If Tenant shall fail to give Landlord written notice on or before the Notice Date, as hereinbefore specified, Tenant shall have no right to extend this Lease for the extension Extended Term, and this Lease shall terminate as provided in Section III(a) of this Lease and Tenant shall vacate the Premises on or before such date in accordance with the provisions of this Lease, unless Tenant shall have elected by written notice to Landlord during said three (3) week period to have the rent for the Extended Term determined by the arbitration system described herein. Each of Landlord and Tenant shall be equal at its own cost and expense retain a real estate broker, who must have ten (10) years experience in commercial leasing in the greater Boston metropolitan market, to determine the fair market rental rent for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Extended Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice appraisals must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, completed and submitted within thirty (30) days of their selectionthe commencement of the appraisal process by Tenant’s notice. If the two appraisals are within ten percent (10%) of each other, they shallthe average of the two amounts shall constitute the rent which shall be due during the Extended Term. If the two appraisals are not within ten percent (10%) of each other, within fifteen (15) days thereafter, the two brokers shall select a third agent with real estate broker (who must also possess the qualificationsminimum qualifications described above), referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and who within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a next thirty (30) day period days shall select which of the appointment two initial amounts shall constitute the rent which shall be due during the Extended Term. Landlord and Tenant shall each bear one-half of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the said third agent, if necessary, broker. The appraisal process shall be paid by binding upon both Landlord and Tenant, and once the Tenant. The determination shall be signed by both parties and shall thereupon become a part process is initiated, Tenant may not withdraw the exercise of the Lease AgreementOption to Extend. If Tenant shall fail to give Landlord written notice not less than two hundred seventy (270) days prior to the Base Monthly Rent for the applicable extension period has not been determined as expiration of the commencement initial term of the applicable extension periodthis Lease, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due have no right to extend this Lease for the last month prior to commencement Extended Term, and this Lease shall terminate as provided in Section III, and Tenant shall vacate the Premises on or before such date in accordance with the provisions of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duethis Lease.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Faro Technologies Inc)
Option to Extend. Tenant is granted shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease Agreement as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for one the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (1i) additional the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) year perioddays. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The extensions described third appraiser, however selected, shall be a person who has not previously acted in this Addendum are personal any capacity for either party. The appraisers shall be instructed to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the Lease. Such extension third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be on averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the same terms middle appraisal of Market Base Rental Rate and conditions as provided in the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease Agreement with term until the exception of Base Monthly Rentappraisers have made their determination. The initial Market Base Monthly Rent for Rental Rate in question, when finally determined by the extension period appraisers, shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior retroactive to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.)term, and (d) without discount for the fact that no leasing commissions shall be paid. The first Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then payment becoming due after the determination of the rental applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be promptly submitted to arbitration. Tenant exercised and the Lease shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that not be extended if Landlord has fifteen (15) days to nominate given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.
Appears in 2 contracts
Samples: Office Lease (Gaiam Inc), Office Lease (Wells Real Estate Fund Ix Lp)
Option to Extend. Subject to the terms and conditions set forth below, Tenant is granted an may at its option to extend the term Term of this Lease for One (1) period of TEN (10) years. Such period is called the “Renewal Term.” The Renewal Term shall be upon the same terms contained in this Lease, except that (i) Landlord shall have no obligation to provide Tenant with any Tenant Improvement Allowance or demolition in connection with the Renewal Term, (ii) the Base Rental during the Renewal Term shall be calculated as set forth below, and (iii) any reference in the Lease to the “Term” of the Lease Agreement shall be deemed to include the Renewal Term and apply thereto, unless it is expressly provided otherwise. Tenant shall have no additional extension options. The Base Rent during the Renewal Term shall be at the then Fair Xxxxxx Rate (defined hereinafter) for one such space for a term commencing of the first day of the Renewal Term. “Market Rate” shall mean the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other Office buildings in the Alameda Area. In no event shall the Base Rent payable during the first (1) additional three (31st) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall Renewal Term be on less than the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for of January 2025. Base Rent during the extension period Renewal Term shall be equal increase at four percent (4%) per year. To exercise any option, Tenant must deliver a binding written notice to the fair market rental for the Leased Premises as of the date Landlord not sooner than twelve (12) months nor later than six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under Term of this Lease. Thereafter, the Market Rate for the Renewal Term shall be calculated by Landlord and Landlord shall inform Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rentalMarket Rate. If the two agents do parties cannot agree upon on the rent, as set forth above, Market Rate within thirty (30) days following Landlord’s delivery of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agentstatement of Fair Market Rent, the third arbitrator parties shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court each, within ten (10) business days of following the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent appoint a real estate broker (115%with at least 10 years experience in office leasing in Alameda) of to determine the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord Market Rate, and each such broker will deliver its determination within ten (10) days additional business days. If the lower of the two is within 90% of the higher of the two valuations, then the Market Rent shall be the average of the two. If a party fails to timely designate a broker, the broker designated by the other party will determine the Market Rate. If the lower of the two valuations Is less than 90% of the higher valuation, then the two brokers/appraisers originally selected by the parties shall, within five (5) business days, select a third broker/appraiser and shall present their final determinations of Market Rate to the third broker/appraiser, and the third broker/appraiser shall pick one of those two as being the Market Rate. The determination of the Base Monthly Rent for the applicable extension period. Any surplus third broker/appraiser shall be a credit for Base Monthly Rent binding on the parties. If Tenant falls to become thereafter duetimely give its notice of exercise, Tenant will be deemed to have waived its option to extend.
Appears in 2 contracts
Samples: Responding Party (Penumbra Inc), Responding Party (Penumbra Inc)
Option to Extend. Subject to the terms and conditions set forth below, Tenant is granted an may at its option to extend the term Terms of the this Lease Agreement for one One (1) additional period of three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Leaseyears. Such extension period is called the “Renewal Term.” The Renewal Term shall be on upon the same terms contained in this Lease, except that (i) Landlord shall have no obligation to provide Tenant with any Tenant Improvement Allowance or demolition in connection with the Renewal Term, (ii) the Base Rental during the Renewal Term shall be calculated as set forth below, and conditions as provided (iii) any reference in the Lease Agreement with to the exception “Term” of Base Monthly Rentthe Lease shall be deemed to include the Renewal Term and apply thereto, unless it is expressly provided otherwise. Tenant shall have no additional extension options. The initial Base Monthly Rent for during the extension period Renewal Term shall be equal to at the then fair market rental rate (defined hereinafter) for the Leased Premises as such space for a term commencing of the date six first day of the Renewal Term. “Market Rate” shall mean the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other R&D/Office buildings in the East Embarcadero area of Palo Alto Area. In no event shall the rent be less than the 60th month’s rent. To exercise any option, Tenant must deliver a binding written notice to Landlord not sooner than ten (610) months nor later than three (3) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease TermTerm of this Lease. Thereafter, the Market Rate for the Renewal Term shall be first determined by Landlord and Landlord shall inform Tenant of the Landlord’s opinion of Market Rate. If the parties cannot agree on the Market Rate, the parties shall each appoint a real estate broker or appraiser (with at least 10 years experience in R&D leasing in Silicon Valley) to determine the Market Rate. If the lower of the two is within 95% of the higher of the two valuations, then the Market Rent shall be the average of the two. If the lower of the two valuations is less than 95% of the higher valuation, then the two brokers/appraisers originally selected by the parties shall select a third broker/appraiser who shall present their final determination of Market Rate to the third broker/appraiser, and the third broker/appraiser shall pick one of those two as being the Market Rate. The fair determination of the third broker/appraiser shall be binding on the parties. The market rental rent shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) 60 days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt date of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose exercise of determining the rental, as set forth above, for the applicable extension periodits option. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion timely give its notice of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth aboveexercise, Tenant shall provide will be deemed to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences have waived its option to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueextend.
Appears in 2 contracts
Option to Extend. Provided Tenant is granted an option not in default hereunder beyond applicable notice and cure periods, Tenant shall have the right to extend the term of the this Lease Agreement for one period of two (12) additional three years by notice to Landlord to such effect given no later than twelve (312) year period. The extensions described in this Addendum are personal months nor earlier than fifteen (15) months prior to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part the end of the Lease. Such extension then term of this Lease and if Tenant timely and properly gives such notice then the term of this Lease shall be on extended without the same necessity of any further action between Landlord and Tenant upon all the terms and conditions as provided in set forth herein except that the Lease Agreement with fixed rent shall be the exception greater of Base Monthly Rent. The initial Base Monthly Rent (x) fixed rent per annum and additional rent under Article VIII for the 12-month period immediately preceding the commencement of the extension period term (the “Current Rent”) or (y) the then fair market rental value of the Premises. If Tenant timely and properly exercises such option to extend, then Landlord shall be equal give to Tenant its determination as to the fair market rental for the Leased Premises as value of the date six Premises. If within sixty (660) months prior days after Txxxxx’s exercise of its right to extend Landlord has not submitted such determination to Tenant then Tenant may request such determination from Landlord and Landlord shall submit the commencement same to Tenant within ten (10) days after such request. If after receipt of Landlord’s determination Tenant determines to contest such determination then by notice to Landlord given within thirty (30) days after its receipt of Landlord’s determination Tenant may request that the applicable expiration period or on or about the date determination of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall value be determined (a) without consideration for the particular use of the Leased Premises made by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property arbitration as follows: Each of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same)and Tenant shall designate a person to act as arbitrator, (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It which person shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent person with at least five years commercial experience in the appraisal of real property in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant of Boston and shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received not be directly employed by Landlord within such time periodor Tenant. Landlord The two appraisers so chosen shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined of the Premises but if the two appraisers are unable to agree upon such fair market rental value within such period then the determination shall be made by a third appraiser selected by the two appraisers, which appraiser likewise shall not be directly employed by either Landlord’s agent Landlord or Tenant’s agent which most closely reflects Tenant and shall have at least five years experience in the appraisal of real property within the City of Nxxxxx. The determination of the third appraiser shall be final. The costs and expenses of the third appraiser shall be borne jointly by Landlord and Txxxxx. Until the determination of the fair market rental value as has been determined by the third agent. Each party Tenant shall pay his own agent to Landlord on account of fixed rent for and with respect to the cost extension term at the rate of the third agentCurrent Rent per annum, if necessary, with a prompt adjustment as soon as the fair market rental value of the Premises for the extension term has been determined. Fixed Rent shall be paid by payable during the Tenantextension term in monthly installments of 1/12th of the annual amount in advance on the commencement date of the extension term and on the first day of each month thereafter. The determination WITNESS the execution hereof in any number of counterparts, each of which counterparts shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent deemed an original for the applicable extension period has not been determined all purposes, as of the commencement of the applicable extension periodday and year first above written. TDC HERITAGE LLC By: TDC Holding Corp., Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent its manager By: /s/ Rxxxxx Xxxxxx Its hereunto duly authorized (115%Landlord) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension periodPARATEK PHARMA, LLC. Any deficiency shall be payable by Tenant to Landlord within ten By: /s/ Dxxxxxx X. Xxxxx Its Hereunto duly authorized (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.Tenant)
Appears in 1 contract
Samples: Paratek Pharmaceuticals, Inc.
Option to Extend. Tenant Provided Lessee has not been and is granted an not in default of any term or condition of this Lease as of the commencement of the renewal term, lessee shall have the one option to extend renew the term of the Lease Agreement lease for one (1) additional three (3) five year period. The extensions described in this Addendum are personal to Tenant and may not be assignedterm, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided of the Lease, except that the Base Rent shall be adjusted to the then prevailing market rental rate for a comparable leases in the Lease Agreement with comparable areas of the exception of Base Monthly RentWest San Fernxxxx Xxxley Area. Such option shall be exercised (if at all) by Lessee giving Lessor at least 270 days prior irrevocable written notice. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair prevailing market rental shall be determined (a) without consideration for in the particular use of the Leased Premises by Tenant but following manner: Prevailing market rental rate shall be for determined taking into account all relevant factors, including (to the permitted use extent relevant) number of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property months of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and if any (d) without discount for the fact that no leasing commissions which shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise part of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental rate), Lessee improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall be promptly submitted not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to arbitrationlease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the Lessor was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease or space by a sublessor not primarily in the business of leasing space. Tenant shall select, within fifteen Prior to the date which is five (155) days of months before the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliationthen current term, and phone number assuming that Lessee has properly exercised its option to renew, Lessor shall give Lessee notice of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the Lessor's proposed prevailing market rental value for the applicable extension termPremises. If Landlord fails to nominate an agent, as set forth above, Tenant Lessee shall provide to Landlord a give Lessor written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days thereafter as to whether or not Lessee agrees with Lessor's proposed prevailing market rental value. If Lessee disagrees with Lessor's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of their selectionthirty (30) days. Upon the expiration of such thirty (30) day period, they shallif the parties are not in agreement as to such fair market rental value by giving written notice to the other party, within such notice containing the name of an appraiser appointed by such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall appoint its own appraiser and give notice thereof to the initiating party. If the second appraiser is not appointed within such fifteen day period, then the appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second appraiser is timely appointed, then the two appraisers shall confer and attempt to agree on the prevailing market value. If the two appraisers are unable to agree, but the higher appraisal is no more than ten percent (10%) higher than the lower appraisal, then the prevailing market rental value shall be the average of the two appraisals. If the higher appraisal is more than ten percent (10%) greater than the lower appraisal, the two appraisers shall together select a third agent with appraiser who shall also determine the qualificationsprevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, referred to abovethe value agreed upon by the two appraisers shall be the prevailing market rental value. If the three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the two closest appraisals. All appraisers shall be members of the MAI and shall have at least ten (10) years' experience appraising similar property in the West San Fernxxxx Xxxley Area. Each party shall bear the cost of the appraiser appointed by such party, and the parties shall share equally in the cost of the third appraiser, if they do not so appointed. If the two appraisers initially appointed are unable to agree on a third agentappraiser, then either party shall have the third arbitrator shall be appointed by right to apply to the presiding judge of the Superior Court in having jurisdiction over the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of a third appraiser. The rent determined in accordance to the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, foregoing shall be paid by subject to adjustments pursuant to the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the attached Addendum to Standard Lease Agreement. If the Base Monthly paragraph 59-Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueAdjustments - Extended Term.
Appears in 1 contract
Option to Extend. Subject to the terms and conditions set forth below, Tenant is granted an may at its option to extend the term Term of this Lease for One (1) period of Five (5) years. Such period is called the “Renewal Term.” The Renewal Term shall be upon the same terms contained in this Lease, except that (i) Landlord shall have no obligation to provide Tenant with any Tenant Improvement Allowance or demolition in connection with the Renewal Term, (ii) the Base Rental during the Renewal Term shall be calculated as set forth below, and (iii) any reference in the Lease to the “Term” of the Lease Agreement shall be deemed to include the Renewal Term and apply thereto, unless it is expressly provided otherwise. Tenant shall have no additional extension options. The Base Rent during the Renewal Term shall be at the then Fair Market Rate (defined hereinafter) for one such space for a term commencing of the first day of the Renewal Term. “Market Rate” shall mean the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other Office buildings in the Alameda Area. In no event shall the Base Rent payable during the first (1) additional three (31st) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall Renewal Term be on less than the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly 36th Month’s Rent. The initial Base Monthly Rent for during the extension period Renewal Term shall be equal increase at four percent (4%) per year. To exercise any option, Tenant must deliver a binding written notice to the fair market rental for the Leased Premises as of the date Landlord not sooner than twelve (12) months nor later than six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease TermTerm of this Lease. The fair market rental Thereafter, the Market Rate for the Renewal Term shall be determined (a) without consideration for the particular use calculated by Landlord and Landlord shall inform Tenant of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased PremisesMarket Rate. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do parties cannot agree upon on the rent, as set forth above, Market Rate within thirty (30) days following Landlord’s delivery of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agentstatement of Fair Market Rent, the third arbitrator parties shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court each, within ten (10) business days of following the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent appoint a real estate broker (115%with at least 10 years experience in office leasing in Alameda) of to determine the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord Market Rate, and each such broker will deliver its determination within ten (10) days additional business days. If the lower of the two is within 90% of the higher of the two valuations, then the Market Rent shall be the average of the two. If a party fails to timely designate a broker, the broker designated by the other party will determine the Market Rate. If the lower of the two valuations is less than 90% of the higher valuation, then the two brokers/appraisers originally selected by the parties shall, within five (5) business days, select a third broker/appraiser and shall present their final determinations of Market Rate to the third broker/appraiser, and the third broker/appraiser shall pick one of those two as being the Market Rate. The determination of the Base Monthly Rent for the applicable extension period. Any surplus third broker/appraiser shall be a credit for Base Monthly Rent binding on the parties. If Tenant fails to become thereafter duetimely give its notice of exercise, Tenant will be deemed to have waived its option to extend.
Appears in 1 contract
Samples: Penumbra Inc
Option to Extend. Provided that no Event of Default shall have occurred which remains uncured and provided that Tenant is granted an option to extend the term or any permitted assignee or sublease shall be in possession of the Lease Agreement for one Leased Premises, Tenant shall have the right, exercisable by given written notice (1"First Renewal Notice") additional three thereof to Landlord at least nine (39) year period. The extensions described in this Addendum are personal to Tenant and may months but not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six before twelve (612) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial original Term of this Lease, to extend the Term of this Lease Termfor an additional term of sixty (60) calendar months ("First Renewal Period") upon all of the terms, covenants and conditions contained in this Lease, except that the annual rent shall be Market Rent. The fair market rental First Renewal Notice shall be determined (a) without consideration for the particular use deemed inoperative and of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), no force and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). effect unless Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, receive within thirty (30) days of their selectionthe First Renewal Notice a written statement from Amoco Corporation, they shallif it is the then guarantor of Tenant's obligations hereunder, within fifteen consenting to the First Renewal Notice. Landlord shall give Tenant notice (15"Landlord's Renewal Notice") days thereafterof Landlord's determination of Market Rent, select a third agent with which shall not be less than Six Hundred Seventy-Eight Thousand Six Hundred Twelve and No/100 Dollars ($678,612.00) per year, for the qualifications, referred to above, and if they do First Renewal Period not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within later than ten (10) days after Landlord's receipt of the expiration date First Renewal Notice. In the event that Tenant disagrees with Landlord's determination of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension periodMarket Rent, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior agrees to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to notify Landlord within ten (10) days after receipt of Landlord's Renewal Notice and thereafter Landlord and Tenant shall attempt for a period of thirty (30) days following the giving of Landlord's Renewal Notice to agree upon the Market Rent paid during the First Renewal Period. In the event that Landlord and Tenant fail to agree in writing upon the determination of the Base Monthly Market Rent for the applicable extension period. Any surplus First Renewal Period by the date which is thirty (30) days after the date of Landlord's Renewal Notice, Tenant's exercise of such option to extend shall be null and void and neither Landlord nor Tenant shall have any further rights or liabilities with respect thereto. Provided that no event of default shall have occurred which remains uncured, and provided that Tenant or any permitted assignee or sublessee shall be in possession of the Leased Premises, and provided the Term of this Lease has been extended for the First Renewal Period, Tenant shall have the right, exercisable by giving notice ("Second Renewal Notice") thereof to Landlord at least nine (9) months but not before twelve (12) months prior to the expiration of the First Renewal Period, to extend the term of this Lease for an additional term of sixty (60) calendar months ("Second Renewal Period") upon all of the terms, covenants and conditions contained in this Lease except that the annual rental shall be Market Rent. The Second Renewal Notice shall be deemed inoperative and of no force and effect unless Landlord shall receive within thirty (30) days of the Second Renewal Notice a credit written statement from Amoco Corporation, if it is the then guarantor of Tenant's obligations hereunder, consenting to the Second Renewal Notice. Landlord shall give Tenant notice ("Landlord's Renewal Notice") of Landlord's determination of Market Rent, which shall not be less than the annual rent payable during the First Renewal Period, for Base Monthly the Second Renewal Period not later than ten (10) days after Landlord's receipt of the Second Renewal Notice. In the event that Tenant disagrees with Landlord's determination of Market Rent, Tenant agrees to notify Landlord within ten (10) days after receipt of Landlord's Renewal Notice and thereafter Landlord and Tenant attempt for a period of thirty (30) days following the giving of Landlord's Renewal Notice to agree upon the Market Rent to become thereafter duebe paid during the Second Renewal Period. In the event that Landlord and Tenant shall fail to agree in writing upon the determination of Market Rent for the Second Renewal Period by the date which is thirty (30) days after the date of Landlord's Renewal Notice, Tenant's exercise of such option to extend shall be null and void and neither Landlord nor Tenant shall have any further rights or liabilities with respect thereto.
Appears in 1 contract
Option to Extend. Tenant is granted an option to extend Provided that, at the term time of the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily exercise or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of at the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for Term or, if applicable, the particular use of the Leased Premises by Tenant but shall be for the permitted use preceding extension of the Lease PremisesTerm, (b) shall take into consideration all Leasehold Improvements that are the property no Event of Landlord or that would become the property Default has occurred and is continuing under this Lease and no default in payment of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowancesinsurance or taxes is continuing under this Lease, etc.)Lessee shall have the option to continue this Lease in effect for up to four additional successive periods of five years each in accordance with the terms and provisions of this Lease then in effect, and (d) without discount for except that the fact that no leasing commissions shall be paid. The Base Monthly Rent for Annual Rental during each extension period shall be subject an amount equal to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise 95% of the annual fair market rental value of the Properties during such extension period (to be determined as set forth below). Lessee shall exercise the first extension option for the applicable extension periodby giving notice to Lessor of Lessee's intention to do so not later than January 31, 2019. If Tenant elects to exercise this optionthe first extension option is exercised by Lessee, Tenant Lessee shall exercise said the second extension option only by written giving notice actually received to Lessor of Lessee's intention to do so not later than October 31, 2024. If the first two extension options are exercised, Lessee shall exercise the third extension option by Landlord giving notice to Lessor of Lessee's intention to do so not less later than October 31, 2029. If the first three hundred sixty-five (365) days prior extension options are exercised, Lessee shall exercise the fourth extension option by giving notice to the expiration date Lessor of the initial Lease TermLessee's intention to do so not later than October 31, 2034. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion Lessor shall cause an appraisal of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased PremisesProperties to be made by an independent MAI appraiser (the "Lessor Appraisal") within 60 days after Lessor is notified of the exercise of such option. Lessee shall have 20 days from its receipt of the Lessor Appraisal to either accept or reject such appraisal, provided that, Lessee's failure to reject the Lessor Appraisal within such 20 day period shall be deemed to be an acceptance thereof. If Lessee shall accept or be deemed to have accepted the rental for the applicable extension period has not been agreed uponLessor Appraisal, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects shall be the amount set forth in the Lessor Appraisal. If Lessee shall reject the Lessor Appraisal within such 20 day period, then Lessee shall within 60 days after such rejection cause an appraisal of the fair market rental value as determined of the Properties to be made by an independent MAI appraiser selected by Lessee (the third agent"Lessee Appraisal"). Each party Lessor shall pay his own agent have 20 days from its receipt of the Lessee Appraisal to either accept or reject such appraisal, provided that, Lessor's failure to reject the Lessee Appraisal within such 20 day period shall be deemed to be an acceptance thereof. If Lessor shall accept or be deemed to have accepted the Lessee Appraisal, the fair market rental value shall be the amount set forth in the Lessee Appraisal. If Lessor shall reject the Lessee Appraisal within such 20 day period, then the appraisers who conducted the Lessor Appraisal and the cost Lessee Appraisal shall be directed to jointly select, within 20 days thereafter, a third independent MAI appraiser who shall, within 30 days after selection, select either the Lessor Appraisal or the Lessee Appraisal as the fair market rental value of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease AgreementProperties. If the Base Monthly Rent for two appraisers are unable to agree on the applicable extension period has not been determined as of the commencement of the applicable extension third appraiser within such 20 day period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency third appraiser shall be payable selected by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension periodAmerican Arbitration Association. Any surplus Lessee shall be a credit for Base Monthly Rent obligated to become thereafter duepay the costs of all three appraisers and the American Arbitration Association (to the extent applicable).
Appears in 1 contract
Option to Extend. Landlord grants to Tenant is granted an option two options to extend the term of the Lease Agreement this lease for one (1) additional a period of three (3) year period. The extensions described in this Addendum are personal years each subject to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same all terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period herein contained except this paragraph, paragraph 47 - Tenant Improvements, and monthly rental which shall be equal to the fair market rental for the Leased Premises determined as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects In order to exercise this option, Tenant shall exercise said option only by must have performed all the covenants and obligations of Tenant herein and at least six months before the ending date of the initial term of this lease or of the first extended term of three years, must have delivered to Landlord written notice actually received of the exercise of this option. As of the date of exercise by Tenant of its option to extend, the monthly base rental for the Extended Term of three years shall be subject to negotiation between the Landlord not less and Tenant. Not later than three hundred sixty-five (3655) days full calendar months prior to the expiration date of the initial Lease Initial Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date or of the initial Lease Termextended term as the case may be, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, Landlord and Tenant’s support for such figure (i.e. comparable lease information). Landlord Tenant shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon between themselves as to the fair market base monthly rental of the Leased Premisespremises, as of the commencement of the Extended Term. If the parties are able to agree on such fair market base monthly rental, said base monthly rent shall be the rental for the applicable extension period has not been agreed upon, as set forth abovepremises during the Extended Term. In the event the parties fail to agree upon said amounts for the Extended Term, at least One Hundred Twenty four (1204) days full calendar months prior to commencement thereof, the base monthly rental for the Extended Term, shall be determined by appraisal in the manner hereafter set forth. In the event it becomes necessary under this subparagraph to determine the fair market base monthly rental of the premises by appraisal, Landlord and Tenant, no later than three (3) full calendar months prior to commencement of said extension period (“Initial Meeting Period”)the Extended Term, then the determination of the rental each shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed appoint an experienced real estate agent appraiser with at least five (5) years commercial experience in the City leasing of industrial office property in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list general vicinity of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time periodpremises. Landlord The two appraisers so selected shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall each determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rentalbase monthly rental for the premises taking into account the value of the property and comparable prevailing rentals including escalations for a three (3)year term in that area. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. If the fair market monthly base rental of the premises established in the two agents do not agree upon (2) appraisals varies by ten percent (10%) or less of the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agenthigher rental, the third arbitrator average of the two shall be appointed controlling. If said fair market monthly base rental varies by the presiding judge more than ten percent (10%) of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court higher rental, said appraisers, within ten (10) days after the submission of the expiration date of last appraisal, shall appoint a third appraiser who shall also meet the time for the selection of the third agent, as qualifications set forth above. Such third appraiser shall, requesting the earliest possible determination within twenty (20) business days after his appointment, determine by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to appraisal the fair market rentalmonthly base rental of the-premises, as set forth taking into account the same factors referred to above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the submit his appraisal report to Landlord and Tenant. The fair market monthly base rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agentappraiser for the premises shall be controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case the base rental set forth in said higher appraisal shall be controlling. Each party If either Landlord or Tenant fails to appoint an appraiser or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the required period in accordance with the foregoing, the appraisal submitted by the other appraiser shall pay his own agent and be controlling. The term "fair market monthly base rental" used for all purposes of this paragraph, shall include escalation over the three year term. The cost of the third agent, if necessary, all appraisals under this subparagraph shall be paid borne equally by the Landlord and Tenant. The Upon determination of the fair market base monthly rental by appraisal, the parties hereto shall immediately execute an addendum to this Lease stating the fair market base monthly rental so determined. In the event of exercise of the option to extend, the security deposit shall continue to be held under the provisions of the lease, to be returned to Tenant to the extent therein set forth, within 30 days after the termination of the extension period and vacation of the premises by Tenant. It is agreed that this Option to Extend is personal to Tenant, and has been granted because of specific use of the premises by Tenant and agreements in the lease concerning Tenant's improvements. In the event this lease is assigned or sublet to any third party or entity other than to successor tenant as defined by paragraph 24 (f), this Option to Extend shall be signed by both parties null and shall thereupon become a part of the void. Landlord and Tenant have executed and delivered this Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement date first hereinabove set forth. LANDLORD TENANT Xxxxxx Xxxxxxxxxxx, Xx. and Olivetti Advanced Technology Xxxxxxx X. Xxxxxxxxxxx Center, Inc. /s/ Xxxxxx Xxxxxxxxxxx, Xx. /s/ X.X. Xxxxxxx ___________________________ By ______________________ Xxxxxx Xxxxxxxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxxxx __________________________ Printed Xxxxxxx X. Xxxxxxxxxxx X.X. Xxxxxxx Name: _____________________ Treasurer/Controller Title: ______________________ 000 Xxxxxxxx Xx. Xxx Xxxxxx, XX 00000 By: ________________________ Printed Name:______________________ Title: ______________________ ADDENDUM ONE TO LEASE AGREEMENT dated by and between XXXXXX XXXXXXXXXXX, XX. and XXXXXXX X. XXXXXXXXXXX as Landlord, and OLIIVETTI ADVANCED TECHNOLOGY CENTER, INC., as Tenant MODIFICATIONS, ADDITIONS AND AMENDMENTS TO LEASE The provisions of this Addendum One shall modify, amend and be in addition to the provisions of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent Lease. Where the provisions of this Addendum One Hundred Fifteen percent (115%) are inconsistent with the provisions of the Base Monthly Rent due for Lease, the last month prior to commencement provisions of the applicable extension period. Any deficiency this Addendum One shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duegovern.
Appears in 1 contract
Samples: Lease Agreement (MMC Networks Inc)
Option to Extend. (a) Subject to the terms of this Paragraph 40 and Paragraph 41, entitled "Option," Landlord hereby grants to Tenant is granted an the option (the "Extension Option") to extend the term Term of this Lease with respect to the Lease Agreement entire Premises for one (1) additional three period of five (35) year period. The extensions described years (the "Option Term"), in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms terms, covenants and conditions as provided for in this Lease during the initial Lease Term, except that (i) Tenant shall have no further extension rights, and (ii) all economic terms such as, without limitation, Monthly Base Rent, an Operating Expense Allowance, if any, parking charges, 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 40 below. (b) The Extension Option must be exercised, if at all, by written notice ("Extension Notice") delivered by Tenant to Landlord no later than the due date which is two hundred seventy (270) days, and no earlier than the date which is one (1) year, prior to the expiration of the then current Term of this Lease. (c) The term "fair market rental rate" as used in this Addendum shall mean the annual amount per rentable square foot, projected during the relevant period, that a willing, financially comparable, non-equity, renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, institutional landlord of a comparable quality office building located in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent John Wayne Airport area ("Comparison Xxxx") xxuld accept, at arm's length (what Landlord is accepting in current transactions for the extension period Building may be considered), for space comparable in size, quality and floor height as the leased area at issue 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 and any other economic matters then being charged by Landlord or the lessor off such similar office buildings. (d) Landlord's determination of fair market rental rate shall be equal delivered to Tenant in writing not later than thirty (30) 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 for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination rate submitted by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not Landlord in writing within Tenant's Review Period will conclusively be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), deemed Tenant's approval and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension periodacceptance thereof. If Tenant elects objects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental valuerate submitted by Landlord within Tenant's Review Period, as set forth above, then Landlord and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor will attempt in good faith to agree upon the such fair market rental of the Leased Premisesrate using their best good faith efforts. If the Landlord and Tenant fail to reach agreement on such fair market rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, rate within fifteen (15) days of following the expiration of Tenant's Review Period (the Initial Meeting Period"Outside Agreement Date"), referred then each party's determination will be submitted to above, a licensed real estate agent with at least five years commercial experience appraisal in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent accordance with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueprovisions below.
Appears in 1 contract
Option to Extend. Provided Tenant is granted an not in Default of any term or condition of this Lease as of the date of exercise of the renewal term, Tenant shall have the option to extend renew the term of the Lease Agreement for one additional five (1) additional three (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedterm, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in of the Lease Agreement with Lease, except that the exception Base Rent at the beginning of Base Monthly Rent. The initial Base Monthly Rent for the extension period each renewal term shall be adjusted to equal to the fair then prevailing market rental rate for comparable leases for similar projects within the Leased Premises Central Business District in Austin as of the commencement of the renewal term (but not less than the Base Rent in effect immediately prior to the date six of the renewal term). The option shall be exercised (6if at all) by Tenant giving irrevocable written notice to Landlord at least twelve (12) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair option shall be personal to the originally named Tenant and any party succeeding to Tenant under a Permitted Transfer. The prevailing market rental rate shall be determined (a) without consideration for in the particular use of the Leased Premises by Tenant but following manner: Prevailing market rental rate shall be for determined taking into account all relevant factors, including (to the permitted use extent relevant) number of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property months of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and if any (d) without discount for the fact that no leasing commissions which shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise part of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental rate), tenant improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall be promptly submitted not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to arbitrationlease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Within one hundred twenty (120) days after the date Tenant has exercised its option to renew, Landlord shall give Tenant notice of Landlord's proposed prevailing market rental value for the Premises. Tenant shall selectgive Landlord written notice within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, within the parties shall negotiate in good faith to resolve their differences for a period of thirty (30) days. Upon the expiration of such thirty day period, if the parties are not in agreement as to such prevailing market rental value, then either party may initiate appraisal to determine the fair market rental value by giving written notice to the other party, such notice containing the name of an appraiser appointed by such initiating party. Within fifteen (15) days of thereafter, the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar party receiving such notice shall appoint its own appraiser and give written notice thereof to the Property under this Leaseinitiating party. Tenant shall provide to Landlord (a) If the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, second appraiser is not appointed within such fifteen (15) day period such that such information is actually received period, then the appraiser selected by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent initiating party shall determine the fair market rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must of the Premises, and such appraisal shall be actually received by Landlord before binding upon the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rentalparties. If the second appraiser is timely appointed, then the two agents do not agree upon the rent, as set forth above, appraisers shall simultaneously submit to each other their good faith estimate of prevailing market rental value within thirty (30) days of their selectionappointment of the second appraiser and attempt to agree on the prevailing market rental value. If the two appraisers are unable to agree, they shallbut the higher appraisal is no more than ten percent (10%) higher than the lower appraisal, within fifteen then the prevailing market rental value shall be the average of the two appraisals. If the higher appraisal is more than ten percent (1510%) days thereaftergreater than the lower appraisal, the two appraisers shall together select a third agent with appraiser who shall also determine the qualificationsprevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, referred to abovethe value agreed upon by the two appraisers shall be the prevailing market rental value. If the three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the two closest appraisals. All appraisers shall be members of the MAI and shall have at least ten (10) years' experience appraising similar property in Austin. Each party shall bear the cost of the appraiser appointed by such party, and the parties shall share equally in the cost of the third appraiser, if they do not so appointed. If the two appraisers initially appointed are unable to agree on a third agentappraiser, then either party shall have the third arbitrator shall be appointed by right to apply to the presiding judge of the Superior Court in having jurisdiction over the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the a third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueappraiser.
Appears in 1 contract
Samples: Recognition and Nondisturbance Agreement (Athenahealth Inc)
Option to Extend. Provided that Tenant is granted an option not in default of the performance or observation of any of the terms or provisions of this Lease after notice to Tenant and expiration of applicable grace and cure periods (as defined in Section 7.1 herein), Tenant may elect to extend the term Term of the this Lease Agreement for one (1) additional three period of five (35) year period. The extensions described in this Addendum are personal years (the “Extension Term”), by giving Landlord notice of such election no later than twelve (12) months prior to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part the expiration of the Leaseinitial Term. Such extension shall be on upon the same terms terms, covenants, and conditions as provided contained in this Lease except that Tenant shall have no further right to extend the Lease Agreement with Term and that the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period Extension Term shall be equal to the at fair market rental rent for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar comparable space in comparable properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension termWatertown area taking into account all relevant factors. If Landlord fails and Tenant are unable to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine agree on the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the amount of such fair market rental. If rent by the two agents do not agree upon the rent, as set forth above, within date that is thirty (30) days after the date of their selectionTenant’s election notice based on rental rates and terms for comparable space in the Greater Boston area, then Landlord shall promptly specify in writing the rent (the “Landlord’s Rental Rate”) at which Landlord is willing to lease the Premises for the Extension Term and Tenant shall promptly specify in writing the rent ( the “Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each appoint one appraiser and the two appraisers so appointed shall determine the fair market rent within thirty days of Tenant’s election notice. If such appraisers are unable to agree on the amount of such fair market rent within such 30-day period, they shall, within fifteen (15) days thereafter, select shall appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) days of the expiration date of the time for the selection of the third agentsuch period, who shall be instructed to select, as set forth above, requesting between the earliest possible determination rents chosen by the Court. At Landlord’s electiontwo appraisers, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value rent that is closest to the third appraiser’s estimate of Fair Market Rent. The fair market rental, as set forth above, within a thirty (30) day period of rent shall be the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined amount so selected by the third agentappraiser and shall be conclusive on the Landlord and Tenant. Each party shall pay his own agent bear the cost of its appraiser, and the cost of the third agent, if necessary, appraiser shall be paid split equally between parties. The third appraiser’s estimate shall be based on the data supplied and used by the Tenant. The determination original two appraisers and the findings made by the third appraiser shall be signed by both parties set forth in writing. EXECUTED as a sealed instrument in two or more counterparts on the day and shall thereupon become a part of the Lease Agreementyear first above written. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension periodLANDLORD: Xxxxxx Xxxxx Aetna Xxxxx, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.LLC /s/ Xxxxx X. Xxxxxxxxx By: Xxxxx X. Xxxxxxxxx Its: Manager TENANT: pSivida Corp. /s/ Xxxx Xxxxxxxx By: Xxxx Xxxxxxxx Its: Vice President, Corporate Affairs, General Counsel & Secretary EXHIBIT A
Appears in 1 contract
Samples: Lease (pSivida Corp.)
Option to Extend. Provided Tenant is granted not in default under any provision of the Lease, Landlord hereby grants to Tenant an option to extend the term of the this Lease Agreement for one (1) an additional term of three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedyears, voluntarily or involuntarilywhen the existing term expires, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Termin this paragraph. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by giving Landlord written notice actually received by Landlord of its intention not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under existing term of this Lease. Tenant shall provide to Landlord (a) the nameIf this Option is exercised, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has Premises shall equal the then current fair market monthly rent ("Fair Market Rent") which shall not been determined be less than $23,408.00 per month for the Premises as of the commencement date of the applicable extension periodextended term, and adjusted upwards each year for at least 4% per annum. If the parties cannot agree on the amount of the "Fair Market Rent" and the annual adjustment to such Fair Market Rent within sixty (60) days prior to the commencement of such extended term, then the Fair Market Rent and the annual adjustment thereto shall be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the Lease, shall remain in full force and effect and shall apply during the Option term. If the fair market rental value for the Premises needs to be determined by appraisal, Landlord and Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior either agree to commencement of the applicable extension periodselect one real estate appraiser or three real estate appraisers. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus real estate appraiser selected shall be a credit for Base Monthly member of the American Institute of Real Estate Appraisers, shall have at least five (5) years experience appraising commercial space located in the vicinity of the Premises, and shall act in accordance with the rules of the American Institute of Real Estate Appraisers. The Fair Market Rent to become thereafter dueshall be based on rental of space of the same age, construction, size and location as the Premises with the improvements installed therein. If only one appraiser is selected, then each party shall pay one-half of the fees and expenses of that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the third appraiser. Such third appraiser shall select one of this first two appraiser's appraisal as the correct fair market rent. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third appraiser.
Appears in 1 contract
Samples: Adeza Biomedical Corp
Option to Extend. (a) Landlord hereby grants Tenant is granted an option to extend the term of the Lease Agreement for one additional period of five (15) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedyears, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of commencing immediately after the expiration of the initial Lease Term. The term, upon the same material terms and conditions contained herein, except that (i) the Monthly Base Rent for the Premises shall be equal to ninety-five percent (95%) of the fair market rental shall be determined (a) without consideration rent for the particular use of Premises determined in the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, manner set forth in subparagraph (b) below, (ii) Tenant shall accept the Premises in an "as is" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises, except to the extent that the determination of fair market rent includes improvements and/or an improvement allowance (iii) the Base Years for Taxes and Expenses shall be the calendar year in which the renewal term commences, and (iv) there shall be no further options to extend the term of the Lease. The determination of "fair market rent" shall take into consideration all Leasehold Improvements that are account and reflect any then market tenant improvements, improvement allowances and moving allowances, rent abatement and other concessions and inducements then being offered for comparable space in comparable buildings in the property of Landlord or that would become the property of Landlord upon expiration or termination market area of the Lease (upon Landlord’s election for Premises. For example, if the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. fair market rent includes a $10 per rentable square foot improvement allowance and three months of free rent, tenant improvement allowancesthen, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this Landlord's option, Tenant shall either receive these actual inducements, or have their value factored into Tenant's base rent for the renewal term, so that if Landlord chooses the latter option Tenant's base rental would be reduced by the value of these inducements. Tenant's election to exercise said the option only by written notice actually received by granted herein must be given to Landlord not in writing no less than three hundred sixty-five (365) 270 days prior to the expiration date of the initial Lease Termterm. The burden of actual delivery of such notice is on the Tenant. In the event If Tenant properly exercises the option hereundergranted herein, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior references in the Lease to the expiration date of term shall be deemed to mean the initial Lease Term, deliver to Landlord, Tenant’s opinion of option term unless the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information)context clearly provides otherwise. Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as Notwithstanding anything to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable contrary contained herein, this extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental option shall be promptly submitted to arbitration. conditioned upon Tenant shall selectnot being in material, within fifteen (15) days monetary Default under the Lease at the time Tenant gives Landlord its notice of the expiration of the Initial Meeting Periodexercise, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement provided that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall must have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If previously provided Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate and an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences opportunity to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, cure any such Default as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed required by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueLease.
Appears in 1 contract
Samples: Workletter Agreement (Northpoint Communications Group Inc)
Option to Extend. Tenant is granted an option may elect to extend the term Term of the this Lease Agreement for one (1) additional three five- (35) year period. The extensions described in this Addendum are personal period (the "Extension Term"), by giving Landlord notice of such election no later than nine (9) months prior to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the LeaseExpiration Date. Such extension shall be on upon the same terms terms, covenants, and conditions as provided contained in this Lease except that Tenant shall have no further right to extend the Lease Agreement with Term and except that the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period Extension Term shall be equal to the at fair market rental rent for comparable space in comparable properties in the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall downtown Boston area and not be less than the then current Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension termRent. If Landlord fails and Tenant are unable to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine agree on the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the amount of such fair market rental. If rent by the two agents do not agree upon the rent, as set forth above, within date that is thirty (30) days after the date of their selectionTenant's election notice based on rental rates and terms for comparable space in the downtown Boston area, then Landlord shall promptly specify in writing the rent (the Landlord's Rental Rate") at which Landlord is willing to lease the Premise for the Extension Term and Tenant shall promptly specify in writing the rent (the "Tenant's Rental Rate") which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each appoint one appraiser and the two appraisers so appointed shall determine the fair market rent within thirty days of Tenant's election notice. If such appraisers are unable to agree on the amount of such fair market rent within such 30-day period, they shall, within fifteen (15) days thereafter, select shall appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) days of the expiration date of the time for the selection of the third agentsuch period, who shall be instructed to select, as set forth above, requesting between the earliest possible determination rents chosen by the Court. At Landlord’s electiontwo appraisers, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value rent that is closest to the third appraiser's estimate of Fair Market Rent. The fair market rental, as set forth above, within a thirty (30) day period of rent shall be the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined amount so selected by the third agentappraiser and shall be conclusive on the Landlord and Tenant. Each party shall bear the cost of its appraiser. If the rental rate as so determined is equal to or greater than Landlord's Rental Rate, then Tenant shall pay his own agent and the entire cost of the third agentappraiser and if such rate as so determined is equal to or less than Tenant's Rental Rate, if necessary, then Landlord shall be paid by pay the Tenant. The determination shall be signed by both parties and shall thereupon become a part entire cost of the Lease Agreementthird appraiser. If the Base Monthly Rent for rate is between the applicable extension period has not been determined Landlord's Rental Rate and the Tenant's Rental Rate, then Landlord and Tenant shall share the cost equally. Until such time as of the commencement of the applicable extension periodfair market rent is so determined, Tenant shall continue to pay an estimated Base Monthly Rent at the rate of One Hundred Fifteen percent (115%) $391,311.00 per annum in monthly installments of $32,609.25 with appropriate adjustment once the Base Monthly Rent due for the last month prior to commencement of the applicable extension periodfair market rent is determined. Any deficiency The third appraiser's estimate shall be payable based on the data supplied and used by Tenant to Landlord within ten (10) days of the determination of original two appraisers and the Base Monthly Rent for findings made by the applicable extension period. Any surplus third appraiser shall be a credit for Base Monthly Rent to become thereafter dueset forth in writing.
Appears in 1 contract
Samples: Point Therapeutics Inc
Option to Extend. Tenant is granted an shall have the option to extend the term of the Lease Agreement Term for one (1) additional three period of five (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be years commencing on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental Such option shall be determined (a) without consideration for the particular use exercised only by Tenant giving written notice thereof which is received by Landlord on or before October 31, 2021, time being of the Leased Premises by essence; provided, however, Tenant but shall be for entitled to exercise the permitted use option to extend granted herein, and the Term shall, in fact, be extended by reason of such exercise, only if this Lease is in full force and effect and no Event of Default exists hereunder. In the event that the Term is in fact extended pursuant to the foregoing, then any such extension shall be upon all of the same terms, covenants, provisions and conditions as contained in this Lease Premises, (b) shall take into consideration all Leasehold Improvements that are except the property of Landlord or that would become annual Base Rent during the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject adjusted to three percent be the Market Rent (3%as hereinafter defined) for the Premises but in any event no less than the annual increases. It shall be a condition precedent Base Rent payable prior to the adjustment. As used herein, “Market Rent” means the product obtained by multiplying (i) the annual rental rate per square foot then established and prevailing in the Building for new leases or lease renewals or, if no such new lease or lease renewals have been entered into within the twelve (12) month period preceding the date of the determination, then the established and prevailing rental rate per square foot being charged as of such date for comparable space to other tenants in other comparable buildings in the Chicago central business area, all as determined in good faith by Landlord taking into account the term of the lease, the credit of the tenant, the location and use of the premises and available concessions such as tenant improvement allowances and rent abatements; by (ii) the total rentable square feet of floor area contained within the Premises. The Market Rent may increase during the extension period depending on market escalations, conditions and terms determined at the same time as the initial Market Rent. Landlord shall notify Tenant of the Market Rent prior to the date which is nine (9) months before the commencement of the extension period, and Tenant may withdraw its exercise of this such option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually which is received by Landlord not less than three hundred sixty-five on or before the tenth (36510th) days prior to the expiration date Business Day, time being of the initial Lease Term. The burden essence, after Tenant’s receipt of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Market Rent from Landlord, Tenant’s opinion of the fair market rental valueand in such event, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord this Lease shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree terminate upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time periodthen current term. Landlord shall have a period of fifteen (15) days after actual receipt of and Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days after the request of their selectioneither, they shall, within fifteen (15) days thereafter, select shall execute and deliver a third agent with supplemental memorandum confirming the qualifications, referred to above, and if they do not so agree on a third agent, annual Base Rent during the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearingextension period when determined. The Tenant’s failure rights hereby granted are personal to so petition the Court, as set forth Tenant named herein and within are not transferable to any assignee (other than a Permitted Transferee) or subtenant hereunder. In the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period event of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part any assignment of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as (other than to a Permitted Transferee) or subletting of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen more than thirty percent (11530%) of the Base Monthly Rent due for Premises, the last month prior to commencement of the applicable extension period. Any deficiency rights set forth in this Paragraph shall automatically terminate and shall thereafter be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duenull and void.
Appears in 1 contract
Samples: Lease (Mattersight Corp)
Option to Extend. Provided Tenant is granted an not in default beyond any applicable cure period, or such default has been waived by Landlord, at the time Tenant exercises its option or at the time the then current term expires and further provided Tenant has not assigned the Lease or sublet the Premises in a transaction requiring Landlord's consent as set forth in Article XI, Tenant shall have the right and option to extend the term of this Lease for two renewal periods of five years each. Tenant shall give Landlord written notice exercising Tenant's option to extend the term of this Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) less than nine months prior to the commencement expiration of the applicable expiration then current term. If not given in a timely manner, the option(s) to extend will be of no force or effect. During each option period or on or about the Annual Base Rent shall be at the then prevailing fair market rental rate (hereinafter referred to as "Market Rental Rate"), based upon the price for comparable space in Class B buildings in the St. Louis suburban area, as of the commencement date of the final determination by intended renewal term, taking into consideration, without limitation, such relevant factors as the arbitrators (set forth below), whichever is higher; howeverbase year for calculating Tenant's obligation with respect to increases in Taxes and Operating Expenses and the amounts of these charges, the initial Base Monthly Rent for use of the applicable extension period Premises as general office, the condition, quality, size and utility of the Premises, and the caliber and financial strength of Tenant. In no event shall not the Market Rental Rate be less than the Annual Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use last year of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days term prior to the expiration date Option period in question. Landlord shall notify Tenant of the initial Lease Term. The burden Landlord's determination of actual delivery Market Rental Rate within fifteen days after receipt of such Tenant's notice is on the Tenantexercising its option. In the event Tenant exercises the option hereunderdisagrees with Landlord's determination of Market Rental Rate, Tenant shallshall notify Landlord in writing of same, along with Xxxxxx's written proposal of Market Rental Rate, within a period fifteen days after receipt of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises`s determination. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they parties cannot agree upon the same, as set forth abovea Market Rental Rate within fifteen business days after Xxxxxxxx's receipt of Tenant's notice, the third agent shall select parties agree to have the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as Market Rental Rate determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueprocess set forth below.
Appears in 1 contract
Samples: Panera Bread Co
Option to Extend. Tenant Provided the LESSEE is granted an in compliance with all of the material terms and conditions of the within Lease at the time the option is exercised, the LESSEE shall have two (2) options to extend the within Lease for a term of the Lease Agreement for one (1) additional three (3) year periodyears per option. The extensions described In the event LESSEE intends to so extend said Lease, LESSEE shall give notice in this Addendum are personal writing to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six LESSOR no later than nine (69) months prior to the commencement termination of the applicable expiration period or on or about expiring term. In the date event LESSEE fails to give timely notification, LESSEE shall forfeit said options. The terms and conditions of the final determination Lease during any extension term shall be identical with the original term, except that annual base rent payable by LESSEE during the arbitrators option term shall be greater of (set forth below), whichever is higher; however, ii) the initial Base Monthly Rent annual base rent for the applicable extension period shall not be less than preceding lease year, or (ii) the Base Monthly Fair Market Rent plus three percent (3%) Rate for the Premises, as of the expiration date LESSEE exercises its option to extend the Term, multiplied by the rentable square feet of the initial Lease TermPremises. The fair market rental "Fair Market Rent Rate" for the Premises shall be determined (a) without consideration the then competitive base rent on a per square foot basis for a similar amount of office space in comparable properties in Chelmsford, Massachusetts, taking into account the particular use of tax and operating expense bases set forth in this Lease and the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), free rent and other concessions (dif any) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject provided to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery new tenants of such notice is on the Tenantcomparable spaces. In the event Tenant exercises that LESSOR and LESSEE do not agree on the option hereunder, Tenant shall, Fair Market Rent Rate for the Premises within a period of one hundred fifty thirty (15030) days after LESSEE exercises its option to extend, the Fair Market Rent Rate for the Premises shall be determined by "baseball arbitration," whereby LESSOR and one hundred eighty LESSEE shall (180within thirty (30) days prior after such 30-day negotiation period) each submit its proposed Fair Market Rent Rate for the Premises, together with any supporting information as each such party desires, to an arbitrator mutually acceptable to the expiration date parties, and the arbitrator shall then promptly select one of the initial Lease Term, deliver to Landlord, Tenant’s opinion of submitted proposals only as the fair market rental value, as set forth above, and Tenant’s support Fair Market Rent Rate for such figure (i.e. comparable lease information)the Premises. Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to In the rental value and event the parties shall thereafter promptly meet and endeavor fail to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, on an arbitrator within fifteen (15) days of the after expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) 30-day period such that such information is actually received by Landlord within such time negotiation period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in state court of the County county in which the Leased Premises are Building is located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.
Appears in 1 contract
Option to Extend. Tenant Provided Lessee is granted an not then in material default under the terms and provision of this Lease, Lessee, subject to the terms and conditions herein contained, shall have the option to extend the term of the this Lease Agreement for one (1) additional three term of five (35) year periodyears (the "Renewal Term") commencing January 1, 2011. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension option herein granted shall be on the same terms and conditions as provided conditioned for its effectiveness upon Lessee notifying Lessor in the Lease Agreement with the exception writing, by registered or certified mail before 5:00 p.m., July 1, 2010, of Base Monthly RentLessee's decision to exercise said option. The initial Base Monthly Rent for base rental rate during the extension period Renewal Term shall be equal to the then fair market rental rate for the Leased Premises as first class office space of the date six (6) months prior to comparable size and quality in Downtown San Diego, prevailing at the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Renewal Term. The fair market rental rate shall be determined (a) without consideration for the particular use by mutual agreement between Lessor and Lessee, and upon failure of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject parties to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to so agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty ninety (12090) days prior to the commencement of said extension period (“Initial Meeting Period”)the Renewal Term, then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rentalrental rate shall be determined by three (3) certified appraisers, each of whom must have knowledge of the office rental market in Downtown San Diego. Lessor and Lessee shall each select, at least eighty-five (85) days prior to the commencement of the Renewal Term, an appraiser, and the two so selected shall select a third. If the two agents do not agree upon the rent, as set forth above, appraisers selected by Lessor and Lessee are unable within thirty five (305) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred selection to above, and if they do not so agree on a third agentappraiser, the third arbitrator appraiser, at least eighty (80) days prior to the commencement of the Renewal Term, shall be appointed selected by the presiding judge then President of the Superior Court San Diego Chapter of the Institute of Real Estate Management (or, if he or she shall refuse to or be unable to do so, by a comparable Real Estate Official in San Diego). The appraisal to be made prior to the commencement date of the Renewal Term shall establish the fair market rental rate of the Premises for the 180 day period immediately preceding commencement of the Renewal Term. In determining the fair market rental rate each appraiser shall: take into consideration the then current availability of similar space in buildings of comparable size and age in the County in which San Diego urban area, giving due consideration to the Leased location; assume the Premises are locatedin their current condition; consider the amount of space within the Premises; and consider the credit rating of the Lessee. Tenant Said appraisers shall be required instructed to petition such Court within determine fair market rental rate independently without consulting each other, and thereafter, to submit the appraisals to both Lessor and Lessee contemporaneously in writing no later than sixty (60) days prior to the commencement of the Renewal Term. The rental rate shall be determined by eliminating the highest and lowest appraisals, and the remaining appraisal shall apply. Each party shall pay the cost of its own appraiser. The cost of the third appraiser, and his/her out of pocket expenses, shall be borne equally by Lessor and Lessee. Upon the determination of fair market rental rate, the parties shall execute an appropriate document confirming said fair market rental rate, and thereafter Lessee shall have ten (10) days in which to make a final election as to whether this lease shall or shall not be so extended. Lessee's choice not to notify Lessor of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and its final election within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus days, shall be a credit for Base Monthly Rent to become thereafter dueautomatically deemed by Lessor as Lessee's decision the Lease shall not be extended.
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Option to Extend. Tenant is granted an Lessee shall have one option (“Extension Option”) to extend the term Term for the Extension Term. The Extension Option must be exercised by irrevocable notice in writing of the Lease Agreement for one such exercise, delivered by Lessee to Lessor, not later than August 31, 2014. The Extension Option shall terminate automatically upon: (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part any termination of the Lease. Such extension shall be on the same terms ; and conditions as provided in the Lease Agreement with the exception (2) execution of Base Monthly Renta Qualifying Sublease. The initial Base Monthly Rent for the extension period Option Term shall be equal to the greater of (i) the Base Rent in effect at the end of the Term, or (ii) 100% of the Fair Market Value, which shall escalate 3% annually. The “Fair Market Value” means the then fair market rental value being charged for a five-year lease with annual 3% adjustments for similar premises in the Leased Premises as vicinity of the date six Premises for a renewal tenant (6) months prior to the commencement of the applicable expiration period or “Vicinity Rents”). In determining Fair Market Value based on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease PremisesVicinity Rents, (bA) the parties shall take into consideration all Leasehold Improvements that are consideration, without limitation: the property cost, if any, of Landlord or that would become parking; and the property of Landlord upon expiration or termination comparable age and quality of the Lease premises, traffic, access and area amenities; and (upon Landlord’s election for B) the same), (c) parties shall specifically not take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under reduce the Lease Agreement at the time of exercise Fair Market Value because of, any of the option for following, if applicable: brokerage commissions saved by Lessor; or the applicable extension periodabsence of any unleased periods of time; moving allowances. Lessor and Lessee shall reasonably and in good faith attempt to agree on the Fair Market Value beginning March 1, 2015. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor are unable to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed uponFair Market Value prior by March 31, as set forth above2015, then within five days thereafter each party, at least One Hundred Twenty (120) days prior its cost and by giving notice to the commencement of said extension period (“Initial Meeting Period”)other party, then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed appoint an independent M.A.I. real estate agent appraiser with at least five years full time commercial appraisal experience in Orange County to determine such Fair Market Value. If a party does not appoint an appraiser within such five days after the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list other party has given notice of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period name of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth aboveits appraiser, the Landlord’s reasonable opinion of value single appraiser appointed shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant sole appraiser and shall set the fair market rentalFair Market Value. If there are two appraisers appointed by the parties as stated herein, they shall meet promptly and attempt to set the Fair Market Value. If the two agents do not appraisers are unable to agree upon within 10 days after the rent, as set forth above, within thirty (30) days of their selectionsecond appraiser has been appointed, they shall, within fifteen (15) days thereafter, select shall attempt to elect a third agent with appraiser meeting the qualifications, referred above qualifications within 10 days after the last day the two appraisers are given to above, and if they do not so set the Fair Market Value. If the two appraisers are unable to agree on a third agent, the third arbitrator shall be appointed appraiser, either of the parties to this Lease, by giving 10 days’ notice to the other party, can apply to the presiding judge of the Superior Court of Orange County, for the selection of a third appraiser meeting the qualifications stated in this section. Each of the County in which parties shall bear one half of the Leased Premises are locatedcost of appointing the third appraiser and of paying the third appraiser’s fee. Tenant The third appraiser, however selected, shall be required to petition such Court within ten (10) a person who has not previously acted in any capacity for either party. Within 15 days of the expiration date of the time for after the selection of the third agentappraiser, as a majority of the appraisers shall set forth the Fair Market Value after having been instructed to comply with the provisions of (A) and (B) above. If a majority of the appraisers are unable to set the Fair Market Value, requesting the earliest possible determination by the Court. At Landlord’s election, such petition Fair Market Value shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearingthe average of the two closest appraisals (unless the appraisals are equidistant, in which case, the middle appraisal shall be the Fair Market Value). The Tenant’s failure to so petition the CourtExtension Option may be exercised by Lessee during any uncured Lessee defaults, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, period for exercise shall not be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent extended for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueany cure periods.
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Option to Extend. So long as Tenant is granted an option not in material default under the terms of the Lease, Tenant shall have the right to extend the term of the Lease Agreement for one two (12) additional three terms of five (35) year periodyears each (the "Extension Terms"). Tenant agrees to notify Landlord in writing of Tenant's intent to renew at twelve (12) months prior to the termination of the then current lease term. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of rental rate during the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period Extension Terms shall be equal to the fair market rental then Fair Market Rental Rate (adjusted for lease concessions) for comparable space located in Lower Xxxxx Xxxx, Seattle, Washington. Within thirty (30) days following Tenant's notice to Landlord of Tenant's desire to extend the Leased Premises as Lease, Landlord shall notify Tenant of the proposed Extended Term Base Rent, which shall be equal to the then Fair Market Rental Rate of the Premises. Fair Market Rental Rate shall be defined as the annual Base Rent (projected from the date six (6) months prior to of the commencement of the applicable expiration period or payment of annual rental to which it applies) which Tenant would expect to pay and Landlord would expect to receive under leases of space of comparable size and quality to the Premises and as provided for in and on or about terms and conditions comparable to, this Lease covering premises similar to the date Premises. Tenant shall have thirty (30) days following receipt of Landlord's notice of the final determination proposed Extended Term Base Rent, in which to accept such determination; or to agree with Landlord on a stipulated Fair Market Rental Rate. If Tenant notifies Landlord, within the aforesaid thirty (30) day period, that Tenant disputes the Prevailing Market Rate quoted by the arbitrators (set forth below), whichever is higher; howeverLandlord, the initial parties shall, during the following thirty (30) days, negotiate in good faith to determine the Annual Base Monthly Rent for the applicable extension renewal Term. If within said thirty-day period the parties are unable to agree on the Annual Base Rent, then within ten (10) days thereafter, each party shall not be less than select a qualified appraiser experienced in appraising commercial rental properties in the Base Monthly Rent plus three percent (3%) as vicinity of the expiration of the initial Lease Term. The fair market rental Building, who shall be determined (a) without consideration submit appraisals for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selectionappointment. If the difference between the appraisals is five percent (5%) or less, they shallthe Prevailing Market Rate shall be determined to be the average of the two appraisals. If the difference is greater than five percent (5%), within fifteen (15) days thereafter, then the two appraisers shall select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator qualified appraiser who shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on submit an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and appraisal within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period days following the submission of the appointment first appraisals. The Prevailing Market Rate shall then be the average of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agenttwo (2) closest appraisals. Each party shall pay his own agent and the cost The fees of the third agent, if necessary, each appraiser shall be paid by the Tenantparty appointing the appraiser and the fees of the third appraiser, if any, shall be shared equally by the parties. The determination option shall be signed by both parties and shall thereupon become a part void if, at the time of exercise of such option, Tenant is not in possession of the Premises or is in default under this Lease Agreementor if Tenant fails to deliver the requisite notice thereof within the time period specified above. If the Base Monthly Rent for the applicable extension period has The option granted herein shall not been determined as of the commencement of the applicable extension periodbe severed from this Lease, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueseparately sold, assigned, or transferred.
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Option to Extend. Subject to the terms of this Paragraph 35 and Paragraph 36 below, entitled "Options", Landlord hereby grants Tenant is granted an a one time option to extend the term Term ("Option to Extend") for an additional period of the Lease Agreement for one (1) additional three (3) year periodyears (the "Option Period"). The extensions described in this Addendum are personal Tenant's Option to Extend shall be for a term that shall begin immediately following the initial Term and shall be exercised by Tenant and may by giving written notice to Landlord at least six (6) months but not be assigned, voluntarily or involuntarily, separate from or as part earlier than nine (9) months prior to the expiration of the Leaseinitial Term. Such extension If Tenant exercises its Option to Landlord shall be on provide Tenant with written notice of the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent fair market rental rate for the extension period Premises, including all appropriate rental concessions, not later than thirty (30) days after the date upon which Tenant timely exercises the right giving rise to the necessity for such fair market rental rate determination. Tenant shall be equal have twenty (20) 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 reasonably object thereto in writing. If within Tenant's Review Period, Tenant objects to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination rate submitted by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion Landlord and Tenant will meet together with their respective advisors to present and discuss their individual determinations of the fair market rental value, as rate for the Premises under the parameters set forth above, above and shall diligently and in good faith attempt to negotiate a rental rate on the basis of such individual determinations. Such meeting shall occur no later than ten (10) days after the expiration of Tenant’s support for such figure (i.e. comparable lease information)'s Review Period. Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the The parties shall thereafter promptly meet each provide the other with such supporting information and endeavor documentation as they deem appropriate. At such meeting if Landlord and Tenant are unable to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed uponrate, as set forth above, at least One Hundred Twenty (120) days prior they shall each submit to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, other their respective best and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, final offer as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rentalrental rate. If Landlord and Tenant fail to reach agreement on such fair market rental rate within five (5) business days following such a meeting (the "Outside Agreement Date") then, as set forth aboveTenant's Option to Extend will be deemed null and void unless Tenant demands appraisal, within a thirty (30) day period in which event each party's best and final determination of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent rate for the applicable extension period has not been determined as of Premises be submitted to appraisal in accordance with the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.following:
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Option to Extend. Tenant Lessee is hereby granted an one (1) option to extend the term of the this Lease Agreement for one (1) additional three ), five (35) year period. The extensions described in this Addendum are personal period (the "Option Term"), such extension to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent term except for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below)Base Rent, whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental which shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increasesas provided below. It shall be a condition precedent to the exercise of this the option that Tenant Lessee shall not be in default under the this Lease Agreement at the time of exercise of it exercises the option for the applicable extension periodoption. If Tenant Lessee elects to exercise this the option, Tenant Lessee shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior notice, delivered to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and Lessor at least one hundred eighty (180) days prior to the expiration date of the initial Extended Term of this lease. There shall be no further options to extend the term of this Lease Term, deliver to Landlord, Tenant’s opinion at the end of the fair market rental valueOption Term. The monthly installment of rent payable during the Option Term shall be the Fair Market Rental for the Premises as of the first day of the First Option Term. Promptly following the exercise of the Option, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of Fair Market Rental for the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental The Premises shall be promptly submitted compared only to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience buildings in the City in which the Leased Premises are located involving properties Mountain View area of a similar to the Property under this Leasequality and size. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth aboveIf, within thirty (30) days after the exercise of their selectionthe Option, they shallthe parties cannot agree upon the Fair Market Rental for the Premises as of the first day of the Option Term, within fifteen the parties shall submit the matter to binding appraisal in accordance with the following procedures: Within sixty (1560) days thereafter, select a third agent with after exercise of the qualifications, referred to above, and if they do not so agree on a third agentOption, the third arbitrator parties shall either (1) jointly appoint an appraiser for this purpose or (b) failing this joint action, separately designate a disinterested appraiser. No person shall be appointed or designated an appraiser unless they have at least five (5) years experience in appraising major commercial properties in Santa Xxxxx County and is a member of a recognized society of real estate appraisers. If, within thirty (30) days after their appointment, the two appraisers reach agreement of the Fair Market Rental for the Premises as of the first day of the Option Term in question, that value shall be binding and conclusive upon the parties. If the two appraisers thus appointed cannot reach agreement on the question presented within thirty (30) days after their appointment then the appraisers thus appointed shall appoint a third disinterested appraiser having like qualifications. If within thirty (30) days after the appointment of the third appraiser, a majority of the appraisers agree on the Fair Market Rental of the Premises as of the first day of Option Term, that value shall be binding and conclusive upon the parties. If within thirty (30) days after the appointment of the third appraiser, a majority of the appraisers cannot reach agreement on the question presented, then the three appraisers shall each submit their independent appraisal to the parties, and the appraisal farthest from the median of the three appraisals shall be disregarded and the average of the remaining two appraisals shall be deemed to be the Fair Market Rental for the Premises as of the first day of the Option Term and shall be binding and conclusive upon the parties. Each party shall pay the fees and expenses of the appraiser appointed by it and shall share equally the fees and expense of the third appraiser. If the two appraisers appointed by the parties cannot agree on the appointment of the third appraiser, they or either of them shall give notice of such failure to agree to the parties and if the parties fail to agree upon the selection of such third appraiser within ten (10) days after the appraisers appointed by the parties give such notice, then either of the parties, upon notice to the other party, may request such appointment by the American Arbitration Association, or on its failure, refusal or inability to act, may apply such appointment to the presiding judge of the Superior Court in of the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date Santa Xxxxx County, State of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueCalifornia.
Appears in 1 contract
Samples: Office Lease (Rambus Inc)
Option to Extend. Provided that Tenant is granted an option still occupying the Premises and is not then in default beyond any applicable cure period pursuant to the Lease, Tenant may elect to extend the term of the Lease Agreement for one (1) additional three five (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedperiod (the “Extension Term”), voluntarily or involuntarily, separate from or as part by giving Landlord notice of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six such election no later than twelve (612) months prior to the commencement Term Expiration Date. Any extension shall be upon the terms, covenants, and conditions contained in this Lease except that Tenant shall have no further right to extend the Lease Term and except that the Base Rent for the Extension Term shall be at fair market rent for comparable space in comparable properties in the greater Lowell area and not less than the then current Base Rent. If Landlord and Tenant are unable to agree on the amount of such fair market rent by the applicable expiration period or on or about date that is thirty (30) days after the date of Tenant’s election notice based on rental rates and terms for comparable space in the final determination by greater Lowell area, then Landlord shall promptly specify in writing the arbitrators rent (set forth below), whichever the “Landlord’s Rental Rate”) at which Landlord is higher; however, willing to lease the initial Base Monthly Rent Premises for the applicable extension period Extension Term and Tenant shall not be less than promptly specify in writing the Base Monthly Rent plus three percent rent (3%the “Tenant’s Rental Rate”) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration which Tenant is willing to pay for the particular use of the Leased Premises by Tenant but shall be for the permitted use of Extension Term and the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion amount of the fair market rental value, as set forth above, rent shall be established by appraisal in the following manner. The Landlord and Tenant’s support for such figure (i.e. comparable lease information). Landlord Tenant shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value each appoint one appraiser and the parties two appraisers so appointed shall thereafter promptly meet and endeavor to agree upon determine the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, rent within thirty (30) days of their selectionTenant’s election notice. If such appraisers are unable to agree on the amount of such fair market rent within such thirty- (30) day period, they shall, within fifteen (15) days thereafter, select shall appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) days of the expiration date of the time for the selection of the third agentsuch period, who shall be instructed to select, as set forth above, requesting between the earliest possible determination rents chosen by the Court. At Landlord’s electiontwo appraisers, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value rent that is closest to the third appraiser’s estimate of fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the rent. The fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects rent shall be the fair market rental value as determined amount so selected by the third agentappraiser and shall be conclusive on the Landlord and Tenant. Each party shall pay his own agent bear the cost of its appraiser, and the cost of the third agent, if necessary, appraiser shall be paid by split equally between parties; provided that if the rental rate as so determined is equal to or greater than the Landlord’s Rental Rate, then Tenant shall pay the entire cost of all appraisers and if such rate as so determined is equal to or less than Tenant’s Rental Rate, then Landlord shall pay the entire cost of all appraisers. The determination shall be signed by both parties and shall thereupon become a part of Until such time as the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension periodfair market rent is so determined, Tenant shall continue to pay an estimated Base Monthly Rent at the rate of One Hundred Fifteen percent (115%) $205,530.00 per annum in monthly installments of $17,127.50 with appropriate adjustments once the Base Monthly Rent due for the last month prior to commencement of the applicable extension periodfair market rent is determined. Any deficiency The third appraiser’s estimate shall be payable based on the data supplied and used by Tenant to Landlord within ten (10) days of the determination of original two appraisers and the Base Monthly Rent for findings made by the applicable extension period. Any surplus third appraiser shall be a credit for Base Monthly Rent to become thereafter dueset forth in writing.
Appears in 1 contract
Samples: Lease (Metabolix, Inc.)
Option to Extend. Provided that (i) no Event of Default (as defined in Section 7.1) shall exist at the time such option is exercised or at the commencement of the applicable Extension Term, and (ii) Tenant is granted an option remains in occupancy of the Premises, Tenant may elect to extend the term Term of this Lease for two (2) additional periods of five (5) years each (each, an “Extension Term”), by giving Landlord notice of such election no sooner than fifteen (15) months earlier than and no later than twelve (12) months prior to the Expiration Date of the Lease Agreement for one (1) additional three (3) year periodoriginal term, or the first. The extensions described in this Addendum are personal to Tenant and Extension Term, as the case may not be assigned, voluntarily or involuntarily, separate from or as part of the Leasebe. Such extension shall be on upon the same terms terms, covenants, and conditions as provided contained in this Lease except that, during the second Extension Term Tenant shall have no further right to extend the Lease Term and except that the Base Rent for each Extension Term shall be at fair market rent for comparable space in comparable properties in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall Greater Boston area and not be less than the then current Base Monthly Rent plus three percent (3%) as in effect during the last year of the expiration of original term, or the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease first Extension Term, deliver to Landlord, Tenant’s opinion of as the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension termcase may be. If Landlord fails and Tenant are unable to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine agree on the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the amount of such fair market rental. If rent by the two agents do not agree upon the rent, as set forth above, within date that is thirty (30) days after the date of their selectionTenant’s election notice based on rental rates and terms for comparable space in the Greater Boston area, then Landlord shall promptly specify in writing the rent (the ‘Landlord’s Rental Rate”) at which Landlord is willing to lease the Premises for the Extension Term and Tenant shall promptly specify in writing the rent (the “Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall so appointed shall determine the fair market rent within thirty days of Tenant’s election notice. If such appraisers are unable to agree on the amount of such fair market rent within such 30-day period, they shall, within fifteen (15) days thereafter, select shall appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) days of the expiration date of the time for the selection of the third agentsuch period, who shall be instructed to select, as set forth above, requesting between the earliest possible determination rents chosen by the Court. At Landlord’s electiontwo appraisers, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value rent that is closest to the third appraiser’s estimate of Fair Market Rent, The fair market rental, as set forth above, within a thirty (30) day period of rent shall be the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined amount so selected by the third agentappraiser and shall be conclusive on the Landlord and Tenant. Each party shall pay his own agent bear the cost of its appraiser, and the cost of the third agent, if necessary, appraiser shall be paid split equally between parties, The third appraiser’s estimate shall be based on the data supplied and used by the Tenant. The determination original two appraisers and the findings made by the third appraiser shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueset forth in writing.
Appears in 1 contract
Samples: Lease (Mimecast LTD)
Option to Extend. Tenant is granted an shall have the option to extend the Lease (the "Extension Option") term of the Lease Agreement for one (1) additional three period of two (32) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of years (the Lease. Such extension shall be on "Extension Period") upon the same terms and conditions as provided set forth in this Lease, except that the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period and other charges during such Extension Period shall be equal to the fair market Fair Market Rent. For the purposes of this Lease, "Fair Market Rent" shall mean the rental for and all other monetary payments that Landlord could obtain from a third party desiring to lease the Leased Premises as of the date six first day of the Extension Period, taking into account all relevant factors. Such Fair Market Rent may include annual adjustments and in no event shall the Fair Market Rent be less than the Base Rent and charges payable for the final year of the Lease Term. Tenant shall exercise the Extension Option, if at all, by giving written notice to Landlord no later than nine (69) months prior to the commencement first day of the applicable expiration period or on or about the date purported Extension Period (time being of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%essence) as of the expiration of the initial Lease Term. The fair market rental and such exercise shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but irrevocable. Landlord shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly initially designate Fair Market Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty thirty (12030) days prior to the commencement of said extension period the Extension Period (“Initial Meeting Period”the "Designation"). If Tenant disagrees with the Designation, then the determination of the rental shall be promptly submitted to arbitration. Tenant shall selectproceed with the Extension Option but advise Landlord in writing of its disagreement with Landlord's Designation within ten (10) days. If Tenant does not unequivocally advise Landlord of its disagreement with Landlord's Designation within said ten (10) day period, Tenant shall conclusively be deemed to have agreed to the Designation. If the parties shall not have agreed in writing (or to be deemed to have agreed pursuant to the immediately preceding sentence) as to the Fair Market Rent, within fifteen twenty (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (1520) days after actual Landlord's receipt of Tenant’s information's notice of disagreement with the Designation, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth aboveeach party shall, within thirty (30) days thereafter appoint an appraiser who shall be instructed to determine independently the Fair Market Rent. If the difference between the amounts so determined by such appraisers shall not exceed ten percent (10%) of their selectionthe lesser of such amounts, they shallthen the Fair Market Rent shall be an amount equal to fifty percent (50%) of the total of the amounts so determined. If the difference between the amounts so determined shall exceed ten percent (10%) of the lesser of such amounts, within fifteen then such two (152) appraisers shall have ten (10) days thereafter, select thereafter to appoint a third agent with appraiser, but if such appraisers fail to do so within such ten (10) day period, then either Landlord or Tenant may request the qualifications, referred Greater Boston Real Estate Board or any successor organization thereto to aboveappoint an appraiser within ten (10) days of such request, and if they do not so agree on a third agent, the third arbitrator both Landlord and Tenant shall be bound by any appointment so made within such ten (10) day period. If no such appraiser shall have been appointed within such ten (10) days either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Any appraiser appointed by the presiding judge original appraisers, by the Greater Boston Real Estate Board or by such court shall be instructed to determine the Fair Market Rent in accordance with the definition of such term contained herein and within twenty (20) days after its appointment. If the third appraisal shall exceed the higher of the Superior Court in first two appraisals, the County in which the Leased Premises are located. Tenant Fair Market Rent shall be required the higher of the first two appraisals; if the third appraisal is less than the lower of the first two appraisals, the Fair Market Rent shall be the lower of the first two appraisals. In all other cases, the Fair Market Rent shall be equal to petition the third appraisal. All such Court determinations of the Fair Market Rent shall be final and binding upon Landlord and Tenant as the Fair Market Rent as of the first day of the Extension Option. Notwithstanding the foregoing, if either party shall fail to appoint its appraiser within the 30 day period specified above (such party being referred to herein as the "failing party"), the other party may serve notice on the failing party requiring the failing party to appoint its appraiser within ten (10) days of the expiration date giving of such notice. If the failing party shall not respond by appointment of its appraiser within said ten day period, then the appraiser appointed by the other party shall be the sole appraiser whose determination of the time Fair Market Rent shall be binding and conclusive upon Tenant and Landlord. This provision for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition appraisal shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest specifically enforceable to the fair market rentalextent such remedy is available under applicable law, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree any determination hereunder shall be final and binding upon the same, parties except as set forth above, the third agent shall select the fair market rental value as determined otherwise provided by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agentapplicable law. Each party shall pay his own agent for the fees and expenses of the cost appraiser appointed by it, but the fees and expenses of the third agentappraiser shall be shared equally by the parties. All appraisers appointed hereunder shall be MAI appraisers, so- called. In the event that a determination of Fair Market Rent is not completed prior to the beginning of the Extension Period, then, if necessaryLandlord shall have made a Designation of Fair Market Rent, such Designation (notwithstanding Tenant's disagreement therewith) shall be paid by deemed the TenantFair Market Rent until the Fair Market Rent is otherwise determined pursuant to applicable provisions hereof. The On determination of the Fair Market Rent, if such determination would be the basis on which Basic Annual Rent is to be paid, retroactive adjustment shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior made in order to commencement of the applicable extension period. Any deficiency shall be payable by Tenant give it effect to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueFair Market Rent.
Appears in 1 contract
Samples: Noosh Inc
Option to Extend. Tenant A Lessee is granted an one option to extend the term of the Lease Agreement this Lease, such option to be for one (1) additional three (3) a 1 - year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as contained herein, except that the monthly base rental rate provided for in the Paragraph(s) 4(a) of this Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time then market rate. Lessee shall advise Lessor of exercise of the option for the applicable extension period. If Tenant elects its intent to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord in writing, not more than 210 nor less than three hundred sixty-five (365) 180 days prior to the expiration date end of the initial Lease Termexpiring term. If Lessee fails to exercise this option within the time required, the option shall be void. B The burden of actual delivery of such parties shall have thirty (30) days after Lessor receives the option notice is in which to agree on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the monthly base rental for the applicable extension period has not been agreed uponextended term during that period, as set forth abovethey shall immediately complete and sign the agreement scheduled below. C If the parties are unable to agree on the monthly base rental for the extended term within that period, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the monthly base rental shall be promptly submitted to arbitrationdetermined by arbitration in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association. Tenant Lessee shall select, be responsible for initiating the arbitration proceeding and advancing 1/2 the administration fee charged by the American Arbitration Association within fifteen (15) 15 days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) 30-day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen described in Paragraph (15B) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant Lessee fails to so nominate an agent and provide the notice, as set forth aboveinitiate such arbitration within that period, the Landlord’s reasonable opinion of value option shall be void, and the Lease shall expire at the end of the term, that date being April 30, 2002. D In setting the fair market monthly base rental value for the applicable extension extended term, the arbitrator shall consider what monthly rents are being paid and what rent escalation provisions are being included on recently executed leases for similar terms, for spaces which are reasonably similar to the premises, with similar amenities and in the general neighborhood of the premises, but shall exclude the value of all tenant improvements made by Lessee to the Premises at Lessee's cost. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a E Upon receiving written notice setting forth that Tenant’s agent shall determine of the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set arbitrator's determination of the fair market monthly rental, the parties shall complete and sign the agreement scheduled below stating the base monthly rental at that rate. If Lessor shall credit Lessee, against the two agents do not agree upon next rental payment due, an amount equal to one- half the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to aboveadministrative fee for such arbitration paid by Lessee, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agentarbitrator's fee, if necessaryany, shall be paid one-half by each party. F Upon execution of this option, the Tenantterm shall be extended to April 30, 2003. ________________________________________________________________________________ To be completed when the Option is exercised: By signing below the parties acknowledge: (i) Lessee has exercised this option on the date indicated below Lessee's signature. The determination shall be signed by both parties and shall thereupon become a part of the term for this Lease Agreement. If the Base Monthly Rent for the applicable extension period has not thus been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior extended to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due_________________.
Appears in 1 contract
Samples: Copper Mountain Networks Inc
Option to Extend. Provided the Tenant is granted an not in default and further provided Tenant has validly exercised its First Option to Extend, Tenant shall have one (1) option to extend the term of the this Lease Agreement for one (1) additional a further period of three (3) year period. The extensions described in this Addendum are personal years and no months provided, however, that Tenant shall give Landlord written notice of its intention to Tenant and may extend not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date less than six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial term of this Lease Termas extended by the First Option to Extend. The fair market rental Said notice shall be determined effective only if given in the timely manner described (a) without consideration for the particular use time being of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (bessence in relation to said notice) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, and provided tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall is not be in default under the Lease Agreement at on the time of exercise date of the option notice nor on the date the original term of the Lease is scheduled to expire as extended by the First Option to Extend. Such extended term shall be subject to all of the agreements, covenants and conditions set forth in this Lease except for (i) the Minimum Rent payable pursuant to Article III hereof which shall be as set forth hereinafter, and except for further Options to Extend as to which there shall be none. It is agreed and understood that the annual Minimum Rent for the applicable extension period. If Tenant elects extended period shall be equal to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixtyninety-five (36595%) days percent of fair market rental value rate of the Premises as of the Commencement Date of this extended term. The Parties shall execute an Amendment to this Lease at least three (3) months prior to the said original expiration date of memorializing said new Minimum Rent. If the initial Lease Term. The burden of actual delivery of such notice is on Landlord and the Tenant. In Tenant are unable to mutually agree in writing upon the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the said fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate value with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days after Tenant's exercise of their selection, they shall, within fifteen (15) days thereafter, select its rights hereunder the said fair market rental value shall be determined by a third agent with panel of two appraisers who are members of the qualifications, referred American Institute of Real Estate Appraisers one of whom shall be selected by landlord and one by Tenant. The two appraisers shall attempt to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s said value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree within thirty (30) days, a third shall be selected by the two so nominated and a decision by the majority of these three shall be accepted as final and binding upon the same, as set forth above, the third agent Landlord and Tenant. All costs and expenses of said appraisers shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined be borne in equal shares by the third agent. Each party shall pay his own agent Landlord and the cost of Tenant, except the third agent, if necessary, said costs and expenses shall be paid borne by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of party requesting this appraisal procedure if the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been figure thus determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord is within ten (10%) percent of the figures proffered in writing by the other party prior to commencing selection of the appraisers. If Landlord or the Tenant shall fail to select an appraiser in accordance with the provisions hereof and such failure shall continue for a period of twenty (20) days after written notice thereof by either to the other, then in that event the appraisers selected by the party selecting an appraiser shall alone determine the fair market value and the costs of the determination of the Base Monthly Rent for the applicable extension period. Any surplus such appraisal shall be a credit for Base Monthly Rent to become thereafter duepaid in equal shares by the Landlord and the Tenant.
Appears in 1 contract
Option to Extend. Landlord hereby grants to Tenant the option to renew this lease for an additional term of five (5) years, upon the then prevailing rental rate and terms and conditions then offered by Landlord for new leases of comparable space within the Building, provided that Tenant not be in default under this lease at the time that the option is granted exercised, and at any time from Tenant’s exercise of the option to the commencement date of the extended term. This option must be exercised by written notice to Landlord, accompanied by payment of the first month’s rental for the extended term, no later than twelve (12) months prior to the expiration of the original lease term. Landlord shall, on request of Tenant advise Tenant in writing no later than 13 months prior to expiration of the Lease term, of the then prevailing rental rate and terms and conditions operative under this paragraph. The adjusted base rental shall be equal to the then prevailing rental rate for comparable space within the Building; and in no event shall the base rent be less than the rent, as escalated pursuant to the terms of this Lease, due and payable during the last month immediately preceding the commencement date of the extended term. If Tenant disagrees with the rental rate stated in Landlord’s notice, Tenant may give Landlord written notice no later than ten (10) business days following its receipt of Landlord’s notice of its election to have such rental rate determined by arbitration, which notice shall state the rental rate suggested by Tenant. Within ten (10) business days after Landlord’s receipt of such notice, Landlord and Tenant shall each appoint an experienced commercial leasing broker, and the appointed brokers shall within three (3) business days after their appointment, jointly appoint a single broker. Each of said brokers shall be informed of the rental rate proposed by Landlord and Tenant, and each of them shall select the rate which he or she deems the prevailing rate within five (5) business days following the selection of the third broker. The rate selected by a majority of the brokers shall be the rate used for the option term. Each party shall pay the fee of the broker selected by such party and one half of the fee of the third broker. If Tenant invokes arbitration, Tenant shall notify Landlord in writing within five (5) business days after the brokers’ decision is made, whether or not Tenant elects to exercise its option hereunder. Tenant shall have no right to extend the term of this Lease beyond the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as term set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.
Appears in 1 contract
Samples: Agreement of Sublease (PRN Corp)
Option to Extend. Provided that OXIGENE, Inc. is in occupancy of the Premises as of the Notice Date (as hereinafter defined) and on the first day of the Extension Term, and that Tenant is granted an not in default under the Lease on the Notice Date and the first day of the Extension Term, then Tenant shall have the option (the “Extension Option”) to extend the term of the Lease Agreement hereof for one (1) additional three period of one (31) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily (the “Extension Term”) by giving Landlord written notice of such exercise on or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of before the date six nine (69) months prior to the commencement of Termination Date (“the applicable expiration period or on or about Notice Date”). If Tenant fails to timely exercise the date of the final determination by the arbitrators (set forth below)Extension Option, whichever is higher; howeveror, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement if at the time of exercise or on the first day of the Extension Term Tenant has failed to satisfy the conditions set forth in this Section 2, then this Extension Option shall immediately and automatically terminate and any rights of Tenant in the Extension Term shall be void and without force and effect. All terms and conditions of this Lease shall remain in effect with respect to the Extension Term, except that, a) there shall be no further option to extend the Term of the Lease, b) Landlord shall have no obligation to perform leasehold improvements or to provide an allowance for leasehold improvements, rent credit or other incentives customarily provided to new tenants, c) the applicable extension period. If Tenant elects Extension Option is not transferable to exercise this optionany third party, Tenant except a Permitted Transferee, and d) annual Base Rent shall exercise said option only by written notice actually received by Landlord be as follows: Base Rent shall be increased effective as of the commencement of the Extension Term to reflect the fair market rental value for comparable office space within the Waltham market, but not less than three hundred sixty-five (365) days prior to the expiration date rate in effect during the last month of the initial Lease Termlease term, taking into account Tenant’s obligations to pay Additional Rent and all other provisions of this Lease. The burden of actual delivery of such Said fair market rental value shall be as determined in a notice is on the given by Landlord to Tenant. In the event that Tenant exercises the option hereunder, Tenant shall, within a period disputes Landlord’s determination of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth aboveand if Landlord and Tenant cannot mutually agree upon the same within forty-five (45) days following receipt of Tenant’s objection, then in such event said fair market rental value shall be determined by appraisers, one to be chosen by Landlord, one to be chosen by Tenant, and a third to be selected by the two first chosen. The unanimous written decision of the first two chosen, without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be conclusive and binding xxxx Xxxx Xxxx Xxxxxxxx Xxxx, Xxxxxxx, XX OXIGENE, Inc. April 16, 2009 Landlord and Tenant’s support for such figure (i.e. comparable lease information). Landlord and Tenant shall thereafter promptly communicate with each notify the other of its chosen appraiser within ten (10) days following expiration of the aforesaid forty-five (45) day period and, unless such two appraisers shall have reached a unanimous decision within thirty (30) days after having been chosen, they shall within a further ten (10) days elect a third appraiser and notify Landlord and Tenant as thereof. Each party shall bear the expense of the appraiser chosen by such party pursuant to Landlord’s response to Tenant’s opinion as to the rental value this Section, and the parties shall thereafter promptly meet and endeavor to agree upon equally share the fair market rental expense of the Leased Premisesthird appraiser (if any). If the rental for the applicable extension period has Base Rent shall not have been agreed upon, as set forth above, at least One Hundred Twenty (120) days determined prior to the commencement of said extension period (“Initial Meeting Period”)thereof, then the determination of the rental shall be promptly submitted to arbitration. Tenant shall selectcontinue to pay Base Rent at the rate most recently in effect, subject to retroactive adjustment by both parties within fifteen (15) days after Base Rent for such period has in fact been determined. In no event shall the foregoing provisions be construed so as to result in any reduction in Base Rent. All Base Rent and any recurring monthly charges shall be paid without setoff or deduction in equal monthly installments in advance on or before the first day of each calendar month, and proportionately (on a per diem basis) at the expiration of the Initial Meeting Period, referred rate then in effect with respect to above, a licensed real estate agent with at least five years commercial experience in the City any calendar month in which the Leased Premises are located involving properties similar to the Property under term of this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value Lease may begin or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueend.
Appears in 1 contract
Samples: Office Lease Agreement (Oxigene Inc)
Option to Extend. Tenant is granted an shall have the option to extend renew the term Term of the this Lease Agreement for one (1) additional three ten (310) year periodterm (the "Extended Term"). The extensions described Basic Rent for the Extended Term shall be Fair Market Rent including annual increases provided in Section 3B of this Lease as reflected in the determination of Fair Market Rent as provided herein. Fair Market Rent shall be defined to be rent for first class well maintained mid-rise office projects located proximate to the Palo Alto, Menlo Park, Redwood City, Redwood Shores, San Mateo, Fostxx Xxxy marketplace and that have on-building freeway visible signage, including the most recent comparable leases Landlord has consummated with other tenants at the Complex. Should Landlord and Tenant be unable to agree upon the Fair Market Rent within twenty-one (21) days of Landlord's timely receipt of Tenant's written notice as required herein, then Tenant may elect to either (i) revoke its written notice and have the lease expire at the end of the Term as provided in this Addendum Lease or (ii) notify Landlord within five (5) days that it elects to set the Fair Market Rent by appraisal. Tenant's failure to so timely notify Landlord as provided above shall be deemed to be Tenant's election to have the Lease expire at the end of the Term. Following such election to set the Fair Market Rent by appraisal, each party, within fifteen (15) days at its cost and by giving notice to the other party, shall appoint a licensed real estate appraiser (MAI) with at least five (5) years' full-time commercial appraisal experience in the area in which the Premises are located to determine the Fair Market Rental as specified above. If a party does not appoint an appraiser within fifteen (15) days, the single appraiser appointed shall be the sole appraiser and shall set the Fair Market Rent for the extended Term. If the two appraisers are appointed by the parties as stated in this paragraph, they shall meet promptly and attempt to set the Fair Market Rent for the extended term. If they are unable to agree within twenty (20) days after the second appraiser has been appointed, they shall select a third appraiser meeting the qualifications stated in this paragraph within ten (10) days after the last day the two appraisers are given to set the Fair Market Rent. The cost of said third appraiser shall be borne equally by Landlord and Tenant. Within ten (10) days after the selection of the third appraiser, a majority of the appraisers shall set the Fair Market Rent for the Extended Term. If a majority of the appraisers are unable to set the Fair Market Rent within the stipulated period of time, then the two (2) closest appraisals shall be added together and their total divided by two (2); and shall be the initial Basic Rent for the Premises for the first twelve (12) months of the Extended Term subject to CPI adjustments as set forth in the Lease. In no event shall Fair Market Rent be less than the Basic Rent paid in the last month of the primary Term of the Lease as increased by the CPI. Said Basic Rent as set by the appraisers shall be binding upon the parties hereto and the Lease shall remain in effect through the Extended Term. Tenant shall have no other right to extend the Lease beyond the Extended Term herein granted. Tenant shall thereafter notify Landlord of its desire to exercise such option within a minimum of nine (9) months and a maximum of twelve (12) months prior to the expiration date of the primary lease Term. This option shall be void, at Landlord's option, if Tenant has been chronically delinquent as defined in Section 13# of this Lease, or is in default at the time of exercise or at any time subsequent to Tenant giving timely notice up to commencement of the Extended Term. This option is personal to Tenant and may not be assignedassigned or transferred without Landlord's expressed written consent which may be withheld in Landlord's sole and absolute discretion. TIME IS OF THE ESSENCE. Except for adjustments to the Basic Rent, voluntarily or involuntarily, separate from or as part of the Lease. Such extension Extended Term shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as primary Term of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. OPT shall continue to be chargeable to Tenant shall provide to Landlord (a) during the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueExtended Term.
Appears in 1 contract
Samples: Office Lease (Niku Corp)
Option to Extend. Tenant is granted an option shall have the right to extend the term of its occupancy of the Lease Agreement Premises for one (1) additional period of three (3) year periodyears, commencing on October 1, 2008 and ending on September 30, 2011 (the “ Extension Term”). The extensions described Extension Term shall be upon the same terms, covenants and conditions as in this Addendum are the Lease, except that Base Rent shall be the Fair Market Base Rent for the Premises as of the date that the Extension Term commences. “Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the Premises as of the commencement of the Extension Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, quality, size and location in the Minneapolis, Minnesota area, with neither party under a compulsion for the appropriate term. Tenant shall notify Landlord of its desire to extend the term for the Extension Term by notifying Landlord in writing no later than April 1, 2008. Upon such notification, Landlord and Tenant shall make a good faith effort to agree upon the Fair Market Base Rent of the Premises for the Extension Term. In the event that Landlord and Tenant fail to agree upon the Fair Market Base Rent by June 1, 2008, then Tenant’s extension right shall automatically terminate and the Lease shall terminate effective as of September 30, 2008. This extension right is personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part . Upon an assignment of the Lease by Tenant, this Section is null and void. Tenant currently leases 32,735 square feet from Landlord, pursuant to a lease dated September 3, 2002 (as amended, the “Northgate Lease”), of the office/warehouse property known as “Northgate I,” located at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX (the “Northgate Property”). Such extension shall be on If Tenant extends the same terms and conditions as provided in term of the Lease Agreement with pursuant to this Section 1.9, Tenant may then elect to terminate this Lease (the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%“Early Termination Option”) as of January 15, 2010 (the expiration of the initial Lease Term“Early Termination Date”), by giving Landlord prior written notice on or before November 3, 2009 (“Tenant’s Early Termination Notice”). The fair market rental shall be determined Tenant’s right to exercise this Early Termination Option is conditioned on: (a) without consideration for Tenant having first irrevocably extended and expanded the particular use Northgate Lease, such that Tenant is the sole tenant of the Leased Premises by Tenant but shall be for Northgate Property effective on or before the permitted use of the Lease Premises, Early Termination Date; (b) shall take into consideration Tenant having paid Landlord all Leasehold Improvements that are amounts due and owing under the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), Lease; (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that there being no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise uncured Event of this option that Tenant shall not be in default under the Lease Agreement Default at the time of exercise of the option for Early Termination Option or on the applicable extension periodEarly Termination Date; and (d) Tenant not having vacated the Premises, or having subleased or assigned its interest under the Lease, as of the date of exercise of the Early Termination Option or on the Early Termination Date. If Tenant elects to exercise this optionEarly Termination Option is timely exercised, Tenant shall exercise said option only by written notice actually received by will deliver possession of the Premises to Landlord not less than three hundred sixty-five (365) days on the Early Termination Date in accordance with the terms of this Lease and all other terms will apply as if this Lease had expired according to its terms, including Tenant’s Share of Expenses attributable to periods prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, Early Termination Date at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension periodsuch obligation is determined. If Tenant fails to so nominate an agent and provide the timely give notice, as set forth aboveTenant will be deemed to have waived its right to terminate pursuant to this Section. This limited termination right is personal to Tenant (and not to any assignee or subtenant) and may not be assigned, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does it being agreed such right is not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest appurtenant to the fair market rentalPremises or this Lease; upon an assignment or sublease by Tenant, as set forth above, within a thirty (30) day period of the appointment of the third agent this Section is null and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duevoid.
Appears in 1 contract
Option to Extend. Provided Tenant is granted an option not in default under any provision of the Lease, Landlord hereby grants to Tenant two one year options to extend the term of this Lease for an additional term when the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedexisting term expires, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Termin this paragraph. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by giving Landlord written notice actually received by Landlord of its intention not less than three hundred sixty-five sixty (36560) days prior to the expiration of the existing term of this Lease. If this Option is exercised, the Base Monthly Rent for the Premises shall equal the then current fair market monthly rent (“Fair Market Rent”), which shall not be less than $19,860.00 per month for the Premises as of the commencement date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premisesapplicable extended term. If the rental for parties cannot agree on the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty amount of the “Fair Market Rent” and the annual adjustment to such Fair Market Rent within sixty (12060) days prior to the commencement of said extension period (“Initial Meeting Period”)such extended term, then the determination Fair Market Rent and the annual adjustment thereto shall be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the rental Lease, shall be promptly submitted to arbitration. Tenant remain in full force and effect and shall select, within fifteen (15) days of apply during the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension Option term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as for the Premises needs to be determined by appraisal, Landlord and Tenant shall either Landlord’s agent agree to select one real estate appraiser or Tenant’s agent which most closely reflects three real estate appraisers. Any real estate appraiser selected shall be a member of the fair market American Institute of Real Estate Appraisers, shall have at least five (5) years experience appraising commercial space located in the vicinity of the Premises, and shall act in accordance with the rules of the American Institute of Real Estate Appraisers. The Fair Market Rent shall be based on rental value of space of the same age, construction, size and location as determined by the third agentPremises with the improvements installed therein. Each If only one appraiser is selected, then each party shall pay his own agent one-half of the fees and expenses of that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the cost third appraiser. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueappraiser.
Appears in 1 contract
Samples: Lease (Adeza Biomedical Corp)
Option to Extend. Subject to Tenant providing Landlord six (6) months prior written notice and Tenant is granted an option to extend the term not in default of any terms of the Lease, Tenant shall have the Option to Extend the Lease Agreement for all space then under lease by Tenant in the Building, for one (1) additional three term of five (35) year periodyears. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension base rental rate shall be on the same terms and conditions as provided then current "fair market" rental rates for like space in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension periodFoothill Ranch Office Market Place. If Tenant elects objects to exercise this optionLandlord's determination of fair market rental, Tenant shall exercise said option only by written notice actually received by notify Landlord not less than three hundred sixty-five in writing within ten (36510) days prior to the expiration date of the initial Lease Term. The burden notice of actual delivery Landlord's determination, that Tenant disagrees with Landlord's determination of such notice is on the Tenantfair market rental. In the event that Landlord and Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor are unable to agree upon the fair market rental value of the Leased Premises. If , then the fair market rental for the applicable extension period has not been agreed upon, value shall be determined by appraisal as set forth abovebelow. Until the appraisal procedures are final, at least One Hundred Twenty (120) days prior to Tenant shall pay base rent in the commencement amount of said extension period (“Initial Meeting Period”), then Landlord's determination. After the determination of the rental appraisers is final, Landlord shall be promptly submitted to arbitration. reimburse Tenant for any overpayment by Tenant of base rent owing for prior months, and Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide promptly make payment to Landlord (a) the name, address, company affiliation, and phone number for any underpayment of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet base rent owing for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension termprior months. If Landlord fails and Tenant are unable to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set agree upon the fair market rentalrental value of the Premises, then Landlord shall cause an M.A.I. appraiser (the "First Appraiser") to determine such fair market rental value. If the two agents do not agree upon the rentsuch appraisal is deemed unacceptable by Tenant, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. then Tenant shall be required to petition such Court so advise Landlord in writing within ten (10) days after receipt of such appraisal and Tenant shall engage another M.A.I. appraiser (the expiration date of "Second Appraiser") to appraise the time for Premises. The First Appraiser and the selection of Second Appraiser shall together choose a third M.A.I. appraiser (the third agent, as set forth above, requesting "Third Appraiser"). If the earliest possible determination appraisal determined by the Court. At Landlord’s electionThird Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and the Second Appraiser, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select then the fair market rental value as shall be the amount determined by either Landlord’s agent the appraisal given by the First Appraiser or Tenant’s agent the Second Appraiser, as applicable, which most closely reflects is closest in amount to the appraisal given by the Third Appraiser. Otherwise, the fair market rental value as shall be the average of the amount determined by the third agentthree appraisals. Each party All other terms and conditions of the initial lease shall pay his own agent and remain the same for the extended term of the lease. The cost of all appraisals shall be borne by Tenant if the fair market rental value of the Premises determined by the foregoing appraisal process is within five percent (5%) of Landlord's original determination; otherwise the cost of the third agent, if necessary, all appraisals shall be paid borne equally by the Landlord and Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.
Appears in 1 contract
Option to Extend. Tenant is granted an option shall have the right to extend the term Initial Term for one additional five (5) year period (the "EXTENSION TERM") by delivering written notice to Landlord on or before the date which is one year prior to the Expiration Date, provided that Tenant is not in default at the time such notice is given or at the commencement of the Lease Agreement for one (1) additional three (3) year periodExtension Term. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension Extension Term shall be on the same terms and conditions as provided in contained herein applicable at the Lease Agreement with Expiration Date, except the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the then-fair market rental value for the Leased Premises, which means what a landlord under no compulsion to lease the Leased Premises and what a tenant under no compulsion to lease the Leased Premises would determine as rent for the Extension Term, as of the date six (6) months prior to the commencement of the applicable expiration period or on or about Extension Term, taking into consideration the date uses permitted under this Lease, the quality, size, design, age, and location of the final determination by Leased Premises, and the arbitrators (set forth below)rent for comparable buildings located in the vicinity of Mira Loma, whichever is higher; howeverCalifornia, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as but excluding any consideration of the expiration value of the initial Lease TermTenant's fixtures, machinery, systems, equipment, and other Tenant's Property, Alterations or other improvements installed or located by Tenant therein. The fair market rental value shall be as determined (a) without consideration for by Landlord in the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the reasonable exercise of this option that its real estate business judgment; provided, however, if Tenant shall not be in default under the Lease Agreement at the time objects to such determination made by Landlord, within ten (10) days after receipt of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the rental amount by Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord each party shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days (after then end of the expiration of the Initial Meeting Period10-day period) select an independent third-party appraiser, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant appraisers shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents their selection select a third independent third-party appraiser who shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition after such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent for the Leased Premises for the Extension Term, which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, parties agree shall be paid by binding. Notwithstanding the Tenant. The determination foregoing, in no event shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of Extension Term be less than the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month in effect prior to commencement of the applicable extension periodExtension Term. Any deficiency The Extension Term shall be payable by Tenant commence at midnight on the date on which the Initial Term expires and shall continue until the fifth (5th) anniversary thereof. (The Initial Term and the Extension Term are collectively referred to Landlord within ten (10) days of herein as the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due"TERM").
Appears in 1 contract
Samples: Land and Building Lease Agreement (Aerobic Creations, Inc.)
Option to Extend. Section 6 of the Ninth Amendment is hereby deleted in its entirety. Provided Tenant is granted an not in Default of any term or condition of the Lease as of the date of exercise or the commencement of the applicable Renewal Term, Tenant shall have the option to extend renew the term of the Lease Agreement as to the entire Premises (as herein expanded) for one two (12) additional three five (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedperiods (each, voluntarily or involuntarilya “Renewal Term”), separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in of the Lease Agreement with Lease, except that the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be adjusted to an amount equal to the fair then prevailing market rental rate for comparable leases for similar projects in Oakland’s Lake Xxxxxxx sub-market (but not less than the Leased Premises as of the date six (6) months Base Rent in effect immediately prior to the commencement of the applicable expiration period or on or about the date of the final determination Renewal Term). Such options shall be exercised (if at all) by the arbitrators Tenant giving irrevocable written notice to Landlord at least nine (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%9) as of months prior to the expiration of the initial Lease Second Extended Term, or first Renewal Term, as the case may be. The fair option shall be personal to the currently named Tenant and any affiliate assignee. The prevailing market rental rate shall be determined (a) without consideration for in the particular use of the Leased Premises by Tenant but following manner: Prevailing market rental rate shall be for determined taking into account all relevant factors, including (to the permitted use extent relevant) number of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property months of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and if any (d) without discount for the fact that no leasing commissions which shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise part of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental rate), tenant improvement obligations, moving allowances, and leasing commissions and costs. The term “comparable leases” shall be promptly submitted not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to arbitrationlease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Tenant shall select, within fifteen Prior to the date which is six (156) days of months before the expiration of the Initial Meeting PeriodSecond Extended Term or first Renewal Term, referred to above, a licensed real estate agent with at least five years commercial experience in as the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliationcase may be, and phone number of such agent (b) and a list of the agents qualificationsassuming that Tenant has properly exercised its option to renew, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period give Tenant notice of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the 's proposed prevailing market rental value for the applicable extension termPremises. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to give Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of their selectionthirty (30) days. Upon the expiration of such thirty day period, they shallif the parties are not in agreement as to such fair market rental value, within then either party may initiate appraisal to determine the fair market rental value by giving written notice to the other party, such notice containing the name of an independent real estate broker or a person with an MAI designation with at least ten (10) years of experience in leasing commercial office space in the Oakland Lake Xxxxxxx submarket area (a “Qualified Appraiser”) appointed by such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall appoint its own Qualified Appraiser and give written notice thereof to the initiating party. If the second Qualified Appraiser is not appointed within such fifteen day period, then the Qualified Appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second Qualified Appraiser is timely appointed, then the two Qualified Appraisers shall confer and attempt to agree on the prevailing market rental value. If the two Qualified Appraisers are unable to agree, but the higher appraisal is no more than five percent (5%) higher than the lower appraisal, then the prevailing market rental value shall be the average of the two appraisals. If the higher appraisal is more than five percent (5%) greater than the lower appraisal, the two Qualified Appraisers shall together, within ten (10) business days, select a third agent with Qualified Appraiser who shall select one of the qualifications, referred to aboveQualified Appraisers determined prevailing market rental value, and that determination shall be the prevailing market rental value. All appraisers shall be members of the MAI and shall have at least ten (10) years' experience appraising similar property in the Oakland Lake Xxxxxxx sub-market area. Each party shall bear the cost of the appraiser appointed by such party, and the parties shall share equally in the cost of the third appraiser, if they do not so appointed. If the two appraisers initially appointed are unable to agree on a third agentappraiser, then either party shall have the third arbitrator shall be appointed by right to apply to the presiding judge of the Superior Court in having jurisdiction over the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the a third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueappraiser.
Appears in 1 contract
Samples: Lease (Pandora Media, Inc.)
Option to Extend. Provided Tenant is granted not in default under any provision of the Lease, Landlord hereby grants to Tenant an option to extend the term of this Lease for an additional term corresponding to and co-terminus with 1000 Xxxx Xx., when the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedexisting term expires, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Termin this paragraph. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by giving Landlord written notice actually received by Landlord of its intention not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration of the existing term of this Lease. If this Option is exercised, the Base Monthly Rent for the Premises shall equal the then current fair market monthly rent (“Fair Market Rent”) which shall not be less than $2500.00 per month for the Premises as of the commencement date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth aboveapplicable extended term, and Tenant’s support adjusted upwards each year for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premisesat least 3% per annum. If the rental for parties cannot agree on the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty amount of the “Fair Market Rent” and the annual adjustment to such Fair Market Rent within sixty (12060) days prior to the commencement of said extension period (“Initial Meeting Period”)such extended term, then the determination Fair Market Rent and the annual adjustment thereto shall be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the rental Lease, shall be promptly submitted to arbitration. Tenant remain in full force and effect and shall select, within fifteen (15) days of apply during the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension Option term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as for the Premises needs to be determined by appraisal, Landlord and Tenant shall either Landlord’s agent agree to select one real estate appraiser or Tenant’s agent which most closely reflects three real estate appraisers. Any real estate appraiser selected shall be a member of the fair market American Institute of Real Estate Appraisers, shall have at least five (5) years experience appraising commercial space located in the vicinity of the Premises, and shall act in accordance with the rules of the American Institute of Real Estate Appraisers. The Fair Market Rent shall be based on rental value of space of the same age, construction, size and location as determined by the third agentPremises with the improvements installed therein. Each If only one appraiser is selected, then each party shall pay his own agent one-half of the fees and expenses of that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the cost third appraiser. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueappraiser.
Appears in 1 contract
Samples: Lease (Adeza Biomedical Corp)
Option to Extend. Tenant Provided Lessee has not been and is granted an not in default of any term or condition of this Lease as of the commencement of the renewal term, lessee shall have the one option to extend renew the term of the Lease Agreement lease for one (1) additional three (3) five year period. The extensions described in this Addendum are personal to Tenant and may not be assignedterm, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided of the Lease, except that the Base Rent shall be adjusted to the then prevailing market rental rate for a comparable leases in the Lease Agreement with comparable areas of the exception of Base Monthly RentWest San Xxxxxxxx Valley Area. Such option shall be exercised (if at all) by Lessee giving Lessor at least 270 days prior irrevocable written notice. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair prevailing market rental shall be determined (a) without consideration for in the particular use of the Leased Premises by Tenant but following manner: Prevailing market rental rate shall be for determined taking into account all relevant factors, including (to the permitted use extent relevant) number of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property months of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and if any (d) without discount for the fact that no leasing commissions which shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise part of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental rate), Lessee improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall be promptly submitted not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to arbitrationlease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the Lessor was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease or space by a sublessor not primarily in the business of leasing space. Tenant shall select, within fifteen Prior to the date which is five (155) days of months before the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliationthen current term, and phone number assuming that Lessee has properly exercised its option to renew, Lessor shall give Lessee notice of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the Lessor's proposed prevailing market rental value for the applicable extension termPremises. If Landlord fails to nominate an agent, as set forth above, Tenant Lessee shall provide to Landlord a give Lessor written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days thereafter as to whether or not Lessee agrees with Lessor's proposed prevailing market rental value. If Lessee disagrees with Lessor's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of their selectionthirty (30) days. Upon the expiration of such thirty (30) day period, they shallif the parties are not in agreement as to such fair market rental value by giving written notice to the other party, within such notice containing the name of an appraiser appointed by such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall appoint its own appraiser and give notice thereof to the initiating party. If the second appraiser is not appointed within such fifteen day period, then the appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second appraiser is timely appointed, then the two appraisers shall confer and attempt to agree on the prevailing market value. If the two appraisers are unable to agree, but the higher appraisal is no more than ten percent (10%) higher than the lower appraisal, then the prevailing market rental value shall be the average of the two appraisals. If the higher appraisal is more than ten percent (10%) greater than the lower appraisal, the two appraisers shall together select a third agent with appraiser who shall also determine the qualificationsprevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, referred to abovethe value agreed upon by the two appraisers shall be the prevailing market rental value. If the three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the two closest appraisals. All appraisers shall be members of the MAI and shall have at least ten (10) years' experience appraising similar property in the West San Xxxxxxxx Valley Area. Each party shall bear the cost of the appraiser appointed by such party, and the parties shall share equally in the cost of the third appraiser, if they do not so appointed. If the two appraisers initially appointed are unable to agree on a third agentappraiser, then either party shall have the third arbitrator shall be appointed by right to apply to the presiding judge of the Superior Court in having jurisdiction over the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of a third appraiser. The rent determined in accordance to the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, foregoing shall be paid by subject to adjustments pursuant to the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the attached Addendum to Standard Lease Agreement. If the Base Monthly paragraph 59-Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueAdjustments - Extended Term.
Appears in 1 contract
Option to Extend. So long as Tenant is granted an option not in material default under the terms of the Lease, Tenant shall have the right to extend the term of the Lease Agreement for one two (12) additional three terms of five (35) year periodyears each (the “Extension Terms”). Tenant agrees to notify Landlord in writing of Tenant’s intent to renew not more than twenty-four (24) and not less than eighteen (18) months prior to the Lease Termination Date (or if during the first such Extension Term, the termination of the then current lease term). The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of rental rate during the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period Extension Terms shall be equal to the fair market rental then Fair Market Rental Rate (adjusted for lease concessions) for comparable space located in Lower Xxxxx Xxxx, Seattle, Washington. Within thirty (30) days following Tenant’s notice to Landlord of Tenant’s desire to extend the Leased Premises as Lease, Landlord shall notify Tenant of the proposed Extended Term Base Rent, which shall be equal to the then Fair Market Rental Rate of the Premises. Fair Market Rental Rate shall be defined as the annual Base Rent (projected in reference to the date six (6) months prior to of the commencement of the applicable expiration period or payment of annual rental to which it applies) which Tenant would expect to pay and Landlord would expect to receive under leases of space of comparable size and quality to the Premises and as provided for in and on or about terms and conditions comparable to, this Lease covering premises similar to the date Premises. Tenant shall have thirty (30) days following receipt of Landlord’s notice of the final determination by the arbitrators (set forth below)proposed Extended Term Base Rent, whichever is higherin which to accept such determination; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of or to agree with Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be on a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension periodstipulated Fair Market Rental Rate. If Tenant elects notifies Landlord, within the aforesaid thirty (30) day period, that Tenant disputes the Prevailing Market Rate quoted by Landlord, the parties shall, during the following thirty (30) days, negotiate in good faith to exercise this optiondetermine the Extended Term Base Rent. If within said thirty-day period the parties are unable to agree on the Extended Term Base Rent, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five then within ten (36510) days prior to thereafter, each party shall select a qualified appraiser experienced in appraising commercial rental properties in the expiration date vicinity of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunderPremises, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord who shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental submit appraisals for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selectionappointment. If the difference between the appraisals is five percent (5%) or less, they shallthe Prevailing Market Rate shall be determined to be the average of the two appraisals. If the difference is greater than five percent (5%), within fifteen (15) days thereafter, then the two appraisers shall select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator qualified appraiser who shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on submit an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and appraisal within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period days following the submission of the appointment first appraisals. The Prevailing Market Rate shall then be the average of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agenttwo (2) closest appraisals. Each party shall pay his own agent and the cost The fees of the third agent, if necessary, each appraiser shall be paid by the Tenantparty appointing the appraiser and the fees of the third appraiser, if any, shall be shared equally by the parties. The determination option shall be signed by both parties and shall thereupon become a part void if, at the time of exercise of such option, Tenant is not in possession of the Premises or is in default under this Lease Agreementor if Tenant fails to deliver the requisite notice thereof within the time period specified above. If the Base Monthly Rent for the applicable extension period has The option granted herein shall not been determined as of the commencement of the applicable extension periodbe severed from this Lease, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueseparately sold, assigned, or transferred.
Appears in 1 contract
Option to Extend. While the Lease is in full force and effect, provided the Tenant is granted an not in default of any of the terms, covenants and conditions thereof, beyond any applicable notice and cure periods, and further provided that United Bank of Philadelphia is itself occupying all of the Premises then demised to Tenant, in each case both as of the time of option exercise and as of the commencement of the herein additional term, Tenant shall have the right or option (the "Extension Option") to extend the original term of the this Lease Agreement for one (1) additional three period of five (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of years (the Lease"Option Period"). Such extension of the Lease Term shall be on the same terms terms, covenants and conditions as provided for in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined original term except that (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of have no further option to extend the Lease PremisesTerm, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions Base Rent shall be paid. The Base Monthly Rent for each extension period shall be subject to three ninety-five percent (395%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental valuevalue of the Premises, as set forth abovedetermined by Landlord, taking into account new leases then currently being negotiated or executed in comparable space located in the Building, including provisions for subsequent increases and Tenant’s support other adjustments, allowances for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to tenant improvements and other market incentives, or if no new leases are then being negotiated or executed in the rental value and the parties shall thereafter promptly meet and endeavor to agree upon Building, the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received determined by Landlord before the fifteen taking into account new leases then being negotiated or executed for comparable space located elsewhere in similar office properties or equivalent buildings located in Philadelphia, Pennsylvania (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects Landlord in accordance with this clause (b) is referred to herein as the fair market rental value "Fair Market Rental Value"), provided, however, that in no event shall the Base Rent on account of any additional term be less than the annual Base Rent payable for the Premises as determined by the third agent. Each party shall pay his own agent and the cost of the third agentdate immediately preceding the commencement of such additional term, if necessaryand (c) Landlord shall have no obligation to prepare, shall be paid by refurbish or construct the Tenant. The determination shall be signed by both parties and shall thereupon become a Premises or any part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of thereof prior to the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent Option Period or otherwise provide any amount of One Hundred Fifteen percent improvement allowance in respect of the Premises. Notice (115%the "Option Notice") of Tenant's intention to exercise the Base Monthly Rent due for the last month Extension Option must be given to Landlord, in writing, at least twelve (12) months prior to commencement the then current expiration of the applicable extension period. Any deficiency Lease Term or the Extension Option shall lapse and be payable by Tenant to Landlord within ten (10) days of no further force or effect, time being of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueessence.
Appears in 1 contract
Samples: United Bancshares Inc /Pa
Option to Extend. Provided Tenant is granted an not in Default of any term or condition of the Lease as of the New Termination Date, Tenant shall have the option to extend renew the term of the Lease Agreement as to the entire Premises (as herein expanded) for one (1) additional three five (35) year period. The extensions described in this Addendum are personal to Tenant and may not be assignedterm (“Renewal Term”), voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in of the Lease Agreement with Lease, except that the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be adjusted to an amount equal to the fair then prevailing market rental rate for comparable leases for similar projects in Oakland’s Lake Xxxxxxx sub-market (but not less than the Leased Premises as of the date six (6) months Base Rent in effect immediately prior to the commencement of the applicable expiration period or on or about the date of the final determination Renewal Term). Such option shall be exercised (if at all) by the arbitrators Tenant giving irrevocable written notice to Landlord at least fifteen (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%15) as of months prior to the expiration of the initial Lease Extended Term. The fair option shall be personal to the currently named Tenant. The prevailing market rental rate shall be determined (a) without consideration for in the particular use of the Leased Premises by Tenant but following manner: Prevailing market rental rate shall be for determined taking into account all relevant factors, including (to the permitted use extent relevant) number of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property months of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and if any (d) without discount for the fact that no leasing commissions which shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise part of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental rate), tenant improvement obligations, moving allowances, and leasing commissions and costs. The term “comparable leases” shall be promptly submitted not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to arbitrationlease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Tenant shall select, within fifteen Prior to the date which is twelve (1512) days of months before the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliationExtended Term, and phone number of such agent (b) and a list of the agents qualificationsassuming that Tenant has properly exercised its option to renew, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period give Tenant notice of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the 's proposed prevailing market rental value for the applicable extension termPremises. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to give Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of their selectionthirty (30) days. Upon the expiration of such thirty day period, they shallif the parties are not in agreement as to such fair market rental value, within then either party may initiate appraisal to determine the fair market rental value by giving written notice to the other party, such notice containing the name of an independent real estate broker or a person with an MAI designation with at least ten (10) years of experience in leasing commercial office space in the Oakland Lake Xxxxxxx submarket area (a “Qualified Appraiser”) appointed by such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall appoint its own Qualified Appraiser and give written notice thereof to the initiating party. If the second Qualified Appraiser is not appointed within such fifteen day period, then the Qualified Appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second Qualified Appraiser is timely appointed, then the two Qualified Appraisers shall confer and attempt to agree on the prevailing market rental value. If the two Qualified Appraisers are unable to agree, but the higher appraisal is no more than five percent (5%) higher than the lower appraisal, then the prevailing market rental value shall be the average of the two appraisals. If the higher appraisal is more than five percent (5%) greater than the lower appraisal, the two Qualified Appraisers shall together, within ten (10) business days, select a third agent with Qualified Appraiser who shall select one of the qualifications, referred to aboveQualified Appraisers determined prevailing market rental value, and that determination shall be the prevailing market rental value. All appraisers shall be members of the MAI and shall have at least ten (10) years' experience appraising similar property in the Oakland Lake Xxxxxxx sub-market area. Each party shall bear the cost of the appraiser appointed by such party, and the parties shall share equally in the cost of the third appraiser, if they do not so appointed. If the two appraisers initially appointed are unable to agree on a third agentappraiser, then either party shall have the third arbitrator shall be appointed by right to apply to the presiding judge of the Superior Court in having jurisdiction over the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the a third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueappraiser.
Appears in 1 contract
Samples: Lease (Pandora Media, Inc.)
Option to Extend. Tenant is granted an In the event and on the condition that Lessee has timely performed each and every, all and singular of the terms, covenants, and conditions of this Lease on Lessee's part to be performed, then Lessor hereby grants to Lessee the option to extend the term of the this Lease Agreement for one two (12) additional three consecutive five (35) year periodperiods commencing when the prior term expires upon each and all of the following terms and conditions: Lessee give to Lessor, and Lessor actually receives, on a date which is prior to the date that option period would commence (if exercised) by at least four (4) months and not more that seven (7) months, a written notice of the exercise of the option to extend this Lease for said additional term, time being of the essence. If said notification of the exercise of said option is not so given and received, this option shall automatically expire. All of the terms and conditions of this Lease except where specifically modified by this option shall apply. The extensions described initial base rent for the option period shall be ninety-five percent (95%) of the prevailing market rate at the time of commencement of the option period, for comparable office space within the general market area. The term 'fair market rental rate' as used in this Addendum are personal to Tenant shall mean the annual amount per rentable square foot, projected during the relevant period, that a willing, comparable, non-equity tenant (excluding sublease and assignment transactions) would pay, and willing, comparable landlord of a comparable quality office building located in the Anaheim Stadium area ('Comparison Area') would accept, at arm's length (what Lessor is accepting in current transactions for the building may not be assignedconsidered), voluntarily or involuntarilyfor space comparable in size, separate from or quality and floor height as part the lease area at issue taking into account the age, quality and layout of the Leaseexisting improvements in the leased area at issue and taking in 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 and any other lease economics than being considered by Lessor or the lessors of such similar office buildings. Such extension Lessor's determination of fair market rental rate shall be on delivered to Lessee in writing not later than thirty (30) days following Lessor's receipt of Lessee's Extension Notice. Lessee will have thirty (30) days ('Lessee's Review Period') after receipt of Lessor's notice of the same terms and conditions as provided fair market rental rate within which to accept such fair market rental rate or to object thereto in the Lease Agreement with the exception of Base Monthly Rentwriting. The initial Base Monthly Rent for the extension period shall be equal Lessee's failure to object to the fair market rental for the Leased Premises as of the date six (6) months prior rate submitted by Lessor in writing within Lessee's Review Period will conclusively be deemed Lessee's approval and acceptance thereof. if Lessee objects to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental valuerate submitted by Lessor within Lessee's Review Period, as set forth above, then Lessor and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor lessee will attempt in good faith to agree upon the such fair market rental of the Leased Premisesrate using their best good faith efforts. If the if Lessor and Lessee fail to reach agreement on such fair market rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty rate with fifteen (12015) days prior to following the commencement expiration of said extension period Lessee's Review Period (“Initial Meeting Period”the 'Outside Agreement Date'), then the each party's determination of the rental shall will be promptly submitted to arbitrationappraisal in accordance with the provisions below. Tenant (i) Lessor and Lessee shall selecteach appoint one independent, unaffiliated appraiser who shall by profession 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 mid-rise office space 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 expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot last appointed appraiser agree upon and appoint a third appraiser who shall be qualified under the same, as same criteria set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost herein above for qualification of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent initial two (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.2)
Appears in 1 contract
Option to Extend. Provided Tenant is granted an option not in default hereunder beyond applicable notice and cure periods, Tenant shall have the right to extend the term of the this Lease Agreement for one period of two (12) additional three years by notice to Landlord to such effect given no later than twelve (312) year period. The extensions described in this Addendum are personal months nor earlier than fifteen (15) months prior to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part the end of the Lease. Such extension then term of this Lease and if Tenant timely and properly gives such notice then the term of this Lease shall be on extended without the same necessity of any further action between Landlord and Tenant upon all the terms and conditions as provided in set forth herein except that the Lease Agreement with fixed rent shall be the exception greater of Base Monthly Rent. The initial Base Monthly Rent (x) fixed rent per annum and additional rent under Article VIII for the 12-month period immediately preceding the commencement of the extension period term (the “Current Rent”) or (y) the then fair market rental value of the Premises. If Tenant timely and properly exercises such option to extend, then Landlord shall be equal give to Tenant its determination as to the fair market rental for the Leased Premises as value of the date six Premises. If within sixty (660) months prior days after Txxxxx’s exercise of its right to extend Landlord has not submitted such determination to Tenant then Tenant may request such determination from Landlord and Landlord shall submit the commencement same to Tenant within ten (10) days after such request. If after receipt of Landlord’s determination Tenant determines to contest such determination then by notice to Landlord given within thirty (30) days after its receipt of Landlord’s determination Tenant may request that the applicable expiration period or on or about the date determination of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall value be determined (a) without consideration for the particular use of the Leased Premises made by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property arbitration as follows: Each of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same)and Tenant shall designate a person to act as arbitrator, (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It which person shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent person with at least five years commercial experience in the appraisal of real property in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant of Boston and shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received not be directly employed by Landlord within such time periodor Tenant. Landlord The two appraisers so chosen shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined of the Premises but if the two appraisers are unable to agree upon such fair market rental value within such period then the determination shall be made by a third appraiser selected by the two appraisers, which appraiser likewise shall not be directly employed by either Landlord’s agent Landlord or Tenant’s agent which most closely reflects Tenant and shall have at least five years experience in the appraisal of real property within the City of Nxxxxx. The determination of the third appraiser shall be final. The costs and expenses of the third appraiser shall be borne jointly by Landlord and Txxxxx. Until the determination of the fair market rental value has been determined Tenant shall pay to Landlord on account of fixed rent for and with respect to the extension term at the rate of the Current Rent per annum, with a prompt adjustment as determined soon as the fair market rental value of the Premises for the extension term has been determined. Fixed Rent shall be payable during the extension term in monthly installments of 1/12th of the annual amount in advance on the commencement date of the extension term and on the first day of each month thereafter. WITNESS the execution hereof in any number of counterparts, each of which counterparts shall be deemed an original for all purposes, as of the day and year first above written. TDC HERITAGE LLC By: TDC Holding Corp., its manager By: /s/ Rxxxxx Xxxxxx Its hereunto duly authorized (Landlord) PARATEK PHARMA, LLC. By: /s/ Dxxxxxx X. Xxxxx Its Hereunto duly authorized (Tenant) G U A R A N T E E FOR VALUE RECEIVED, and in consideration for, and as an inducement to TD HERITAGE LLC (the “Landlord”) to make the foregoing lease (the “Lease”) with PARATEK PHARMA, LLC (the “Tenant”), the undersigned, PARATEK PHARMACEUTICALS, INC., a Delaware corporation (the “Guarantor”), unconditionally guarantees the full performance and observance of all the covenants, conditions and agreements therein provided to be performed and observed by the third agent. Each party shall pay his own agent Tenant, the Tenant’s successors and assigns, and expressly agrees that the validity of this agreement and the cost obligations of the third agentGuarantor shall in no way be terminated, if necessaryaffected or impaired by reason of the granting by the Landlord of any indulgences to the Tenant or by reason of the assertion by the Landlord against the Tenant of any of the rights or remedies reserved to the Landlord pursuant to the provisions of the Lease or by the relief of the Tenant from any of the Tenant’s obligations under the Lease by operation of law or otherwise (including, but without limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws now or hereafter enacted); the Guarantor hereby waiving all suretyship defenses. The obligations of the Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. The Guarantor further covenants and agrees that this Guarantee shall remain and continue in full force and effect as to any renewal, modification or extension of the Lease, whether or not the Guarantor shall have received any notice of or consented to such renewal, modification or extension. The Guarantor further agrees that its liability under this Guarantee shall be paid primary (and that the heading of this instrument and the use of the word “guarantee(s)” shall not be interpreted to limit the aforesaid primary obligations of the Guarantor), and that in any right of action which shall accrue to the Landlord under the Lease, the Landlord may, at its option, proceed against the Guarantor, any other guarantor, and the Tenant, jointly or severally, and may proceed against the Guarantor without having commenced any action against or having obtained any judgment against the Tenant or any other guarantor. The Guarantor irrevocably waives any and all rights the Guarantor may have at any time (whether arising directly or indirectly, by operation of law or by contract or otherwise) to assert any claim against the Tenant on account of payments made under this Guarantee, including, without limitation, any and all rights of or claim for subrogation, contribution, reimbursement, exoneration and indemnity, and further waives any benefit of and any right to participate in any security deposit or other collateral which may be held by the Landlord; and the Guarantor will not claim any set-off or counterclaim against the Tenant in respect of any liability the Guarantor may have to the Tenant. The determination shall be signed Guarantor further represents to the Landlord as an inducement for it to make the Lease, that the Guarantor owns all of the entire outstanding capital stock of the Tenant, that the execution and delivery of this Guarantee is not in contravention of its charter or by-laws or applicable state laws, and has been duly authorized by both parties and shall thereupon become its Board of Directors. It is agreed that the failure of the Landlord to insist in any one or more instances upon a part strict performance or observance of any of the terms, provisions or covenants of the Lease Agreement. If the Base Monthly Rent or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the applicable extension period has not been determined as future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by the Landlord of rent with knowledge of the commencement breach of any provision of the applicable extension periodLease shall not be deemed a waiver of such breach. No subletting, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) assignment or other transfer of the Base Monthly Rent due for Lease, or any interest therein, shall operate to extinguish or diminish the last month prior to commencement liability of the applicable extension period. Any deficiency Guarantor under this Guarantee; and wherever reference is made to the liability of the Tenant named in the Lease, such reference shall be payable deemed likewise to refer to the Guarantor. All payments becoming due under this Guarantee, including, without limitation, costs of collection, and not paid when due shall bear interest from the applicable due date until received by Tenant to the Landlord within ten (10) days at the interest rate set forth in the Lease. It is further agreed that all of the determination terms and provisions hereof shall inure to the benefit of the Base Monthly Rent for heirs, executors, administrators and assigns of the applicable extension period. Any surplus Landlord, and shall be a credit for Base Monthly Rent to become thereafter duebinding upon the successors and assigns of the Guarantor.
Appears in 1 contract
Option to Extend. So long as this Lease remains in full force and effect without any default by Tenant is granted an option to beyond the applicable grace period, Tenant may extend the term Term of this Lease for five (5) years by giving notice of such election to Landlord at least six (6) months prior to the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Leaseoriginally-scheduled Termination Date. Such extension shall be on the same terms terms, conditions and conditions other provisions set forth herein, except that Tenant shall have no further option to extend said Term, provided however that Yearly Fixed Rent shall be increased effective as provided in of the Lease Agreement with the exception commencement of Base Monthly Rent. The initial Base Monthly Rent for the such extension period shall be equal to reflect the fair market rental value of the Demised Premises for the Leased Premises as balance of the date six (6) months prior Term of this Lease, taking into account Tenant’s obligation to the commencement pay Additional Rent and all other provisions of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Termthis Lease. The Said fair market rental value shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). , provided however that if Landlord shall thereafter promptly communicate with and Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to cannot mutually agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days following the exercise of their selectionsuch option, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator then such value shall be appointed determined by the presiding judge of the Superior Court in the County in which the Leased Premises are locatedappraisal as hereinafter set forth. Landlord and Tenant shall be required to petition such Court each notify the other, within ten (10) days following expiration of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a aforesaid thirty (30) day period period, of the appointment of the third agent and if they cannot agree upon the same, (a) its opinion as set forth above, the third agent shall select the to such fair market rental value as determined by either (“Landlord’s agent Valuation” or “Tenant’s agent which most closely reflects Valuation”, as the fair market rental value as determined by the third agentcase may be) and (b) its chosen appraiser. Each party Such two appraisers shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become within a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within further ten (10) days (a) elect a third appraiser, notifying Landlord and Tenant thereof, and (b) prepare written statements setting forth their respective opinions as to such fair market rental value, which opinions shall not be shared with or otherwise disclosed to the third appraiser, who shall proceed forthwith to prepare a statement setting forth his or her own independent opinion as to such value, whereupon copies of all three appraisers’ statements shall be submitted to Landlord and Tenant. Yearly Fixed Rent for such extension period shall then be established by reference to whichever of Landlord’s Valuation or Tenant’s Valuation most closely approximates (a) the third appraiser’s opinion of value, if such value is identical to that set forth in the opinion of value submitted either by Landlord’s appraiser or by Tenant’s appraiser, or otherwise (b) the mean opinion of value submitted by the three appraisers, determined by disregarding the highest and lowest such values. Each party shall bear the expense of the determination appraiser chosen by such party pursuant to this Section, and the parties shall equally share the expense of the Base Monthly third appraiser. If Yearly Fixed Rent for such extension period shall not have been determined prior to the applicable extension period. Any surplus commencement thereof, Tenant shall be a credit continue to pay Yearly Fixed Rent at the rate most recently in effect, subject to retroactive adjustment once Yearly Fixed Rent for Base Monthly Rent to become thereafter duesuch period has in fact been determined.
Appears in 1 contract
Samples: Lease (Viryanet LTD)
Option to Extend. Tenant A Lessee is granted an one option to extend the term of the Lease Agreement this Lease, such option to be for one (1) additional three (3) a 1 - year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part of the Lease. Such extension shall be on the same terms and conditions as contained herein, except that the monthly base rental rate provided for in the Paragraph(s) 4(a) of this Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time then market rate. Lessee shall advise Lessor of exercise of the option for the applicable extension period. If Tenant elects its intent to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord in writing, not less more than three hundred sixty-five (365) 210 nor than 180 days prior to the expiration date end of the initial Lease Termexpiring term. If Lessee fails to exercise this option within the time required, the option shall be void. B The burden of actual delivery of such parties shall have thirty (30) days after Lessor receives the option notice is in which to agree on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the monthly base rental for the applicable extension period has not been agreed uponextended term during that period, as set forth abovethey shall immediately complete and sign the agreement scheduled below. C If the parties are unable to agree on the monthly base rental for the extended term within that period, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the monthly base rental shall be promptly submitted to arbitrationdetermined by arbitration in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association. Tenant Lessee shall select, be responsible for initiating the arbitration proceeding and advancing 1/2 the administration fee charged by the American Arbitration Association within fifteen (15) 15 days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) 30-day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen described in Paragraph (15B) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant Lessee fails to so nominate an agent and provide the notice, as set forth aboveinitiate such arbitration within that period, the Landlord’s reasonable opinion of value option shall be void, and the Lease shall expire at the end of the term, that date being April 30, 2001. D In setting the fair market monthly base rental value for the applicable extension extended term, the arbitrator shall consider what monthly rents are being paid and what rent escalation provisions are being included on recently executed leases for similar terms, for spaces which are reasonably similar to the premise, with similar amenities and in the general neighborhood of the premises, but shall exclude the value of all tenant improvements made by Lessee to the Premises at Lessee's cost. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a E Upon receiving written notice setting forth that Tenant’s agent shall determine of the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set arbitrator's determination of the fair market monthly rental, the parties shall complete and sign the agreement scheduled below stating the base monthly rental at that rate. If Lessor shall credit Lessee, against the two agents do not agree upon next rental payment due, an amount equal to one- half the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to aboveadministrative fee for such arbitration paid by Lessee, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agentarbitrator's fee, if necessaryany, shall be paid one-half by each party. F Upon execution of this option, the Tenant. The determination term shall be signed by both extended to April 30, 2002 To be completed when the Option is exercised: By signing below the parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.acknowledge:
Appears in 1 contract
Samples: Copper Mountain Networks Inc
Option to Extend. Subsection G of Lease Exhibit E to the original Lease is deleted in its entirety and replaced with the following. Tenant is granted an option shall have the right, to be exercised as hereinafter provided, to extend the term of the this Lease Agreement for one two (12) additional three periods of five (35) year years each (each such period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarilya “Next Extension Term”), separate from or as part of the Lease. Such extension shall be on the same following terms and conditions as provided in and subject to the Lease Agreement with the exception of Base Monthly Rentlimitations hereinafter set forth. The initial Base Monthly Rent for the extension period Each Next Extension Term shall be equal to upon the fair market rental for same terms, covenants and conditions as in this Lease, except that Base Rent shall be the Leased Premises as greater of (A) the date six (6) months annual Base Rent in effect immediately prior to the commencement Next Extension Term; and (B) the Fair Market Base Rent for such space on the date such Next Extension Term shall commence. “Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension periodNext Extension Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, quality, size and location in the Maple Grove, Minnesota area, with neither party under a compulsion for the appropriate term. Tenant shall pay an estimated Base Monthly Rent notify Landlord of One Hundred Fifteen percent (115%) of its desire to extend the Base Monthly Rent due term for the last month Next Extension Term by notifying Landlord in writing (“Extension Notification”) at least nine (9) months prior to commencement of the applicable extension periodNext Extension Term. Any deficiency Upon Landlord’s receipt of the Extension Notification, Landlord and Tenant shall be payable by make a good faith effort to agree upon the Fair Market Base Rent of the Premises for the Next Extension Term. In the event that Landlord and Tenant fail to Landlord agree upon the Fair Market Base Rent within ten forty-five (1045) days of the determination Landlord’s receipt of the Base Monthly Rent for the applicable Extension Notification, then Tenant’s extension periodright shall automatically terminate. Any surplus Tenant’s option to extend as set forth in this Section shall be contingent upon this Lease being in full force and effect and Tenant not being in default in the performance of any of the terms, covenants and conditions herein contained in respect to a credit for Base Monthly Rent matter as to become thereafter duewhich notice of default has been given hereunder which has not been remedied within the time limited in this Lease.
Appears in 1 contract
Samples: Lease (Vascular Solutions Inc)
Option to Extend. Provided that (i) no Event of Default shall exist at the time such option is exercised or at the commencement of the Extension Term, and (ii) this Lease remains in full force and effect and Tenant is granted an option or a Permitted Transferee remains in occupancy of the Premises, Tenant may elect to extend the term Term of this Lease for two (2) additional periods of seven (7) years each (each, an “Extension Term”), by giving Landlord notice of such election no sooner than eighteen (18) months earlier than and no later than fifteen (15) months prior to the Expiration Date of the Lease Agreement for one (1) additional three (3) year period. The extensions described in this Addendum are personal to Tenant and original term or first Extension Term, as the case may not be assigned, voluntarily or involuntarily, separate from or as part of the Leasebe. Such extension shall be on upon the same terms terms, covenants, and conditions as provided contained in this Lease except that after the exercise of the second Extension Term, Tenant shall have no further right to extend the Lease Term and except that the Base Rent for each Extension Term shall be at fair market rent for comparable space in comparable properties in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall Route 3/Route 495 area and not be less than the then current Base Monthly Rent plus three percent (3%) as in effect during the last year of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord original term or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease first Extension Term, deliver to Landlord, Tenant’s opinion of as the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension termcase may be. If Landlord fails and Tenant are unable to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine agree on the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the amount of such fair market rental. If rent by the two agents do not agree upon the rent, as set forth above, within date that is thirty (30) days after the date of their selectionTenant’s election notice based on rental rates and terms for comparable space in the Route 3/Route 495 area, then Landlord shall promptly specify in writing the rent (“Landlord’s Rental Rate”) at which Landlord is willing to lease the Premises for the applicable Extension Term and Tenant shall promptly specify in writing the rent (“Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each appoint one appraiser and the two appraisers so appointed shall determine the fair market rent within thirty days of Tenant’s election notice. If such appraisers are unable to agree on the amount of such fair market rent within such thirty (30) day period, they shall, within fifteen (15) days thereafter, select shall appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) days of the expiration date of the time for the selection of the third agentsuch period, who shall be instructed to select, as set forth above, requesting between the earliest possible determination rents chosen by the Court. At Landlord’s electiontwo appraisers, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value rent that is closest to the third appraiser’s estimate of fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the rent. The fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects rent shall be the fair market rental value as determined amount so selected by the third agentappraiser and shall be conclusive on the Landlord and Tenant. Each party shall pay his own agent bear the cost of its appraiser, and the cost of the third agent, if necessary, appraiser shall be paid split equally between parties. The third appraiser’s estimate shall be based on the data supplied and used by the Tenant. The determination original two appraisers and the findings made by the third appraiser shall be signed by both parties set forth in writing. Tenant's rights under this Section are personal to Tenant and shall thereupon become not apply to any Transferee of Tenant (other than a part of the Lease AgreementPermitted Transferee) and shall not be assignable or exercisable by any other person or entity. If at any time during the Base Monthly Rent for Term Tenant has sublet the applicable extension period has Premises (not been determined as including Transfers to Permitted Transferees), then Tenant's rights under this Section shall thereafter be null and void and of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueno further force or effect.
Appears in 1 contract
Samples: T2 Biosystems, Inc.
Option to Extend. In the event this lease is in full force and effect without notice of default to Tenant or, if such notice of default has been given, Tenant is granted an option acting promptly and diligently to cure the same, Tenant may extend the term of this lease for a period of five (5) years from the Lease Agreement Expiration Date by giving at least twelve (12) months’ prior written notice thereof to Landlord. Yearly Fixed Rent for one (1) additional said extension period shall be based upon and consistent with 95% of the then fair market rental value of the premises as the same may be mutually agreed by Landlord and Tenant and, if they have not so agreed in writing in any case within three (3) year periodmonths following the exercise of said option, the same shall be determined by appraisers, one to be chosen by Landlord, one to be chosen by Tenant, and a third to be selected by the two first chosen. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate from or as part unanimous written decision of the Lease. Such extension two first chosen, without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be on conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the same terms and conditions as provided in the Lease Agreement with the exception other of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six its chosen appraiser within thirty (630) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the days following expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to aforesaid three percent (3%) annual increases. It month period and, unless such two appraisers shall be have reached a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixtyunanimous decision within seventy-five (36575) days prior to from said expiration, they shall within a further fifteen (15) days elect a third appraiser and notify Landlord and Tenant thereof. Landlord and Tenant shall each bear the expiration date expense of the initial Lease Term. The burden of actual delivery of such notice is on appraiser chosen by it and shall equally bear the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date expense of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental valuethird appraiser (if any). If, as set forth abovecontemplated by this Lease, and Tenant’s support Yearly Fixed Rent for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable said extension period has not been agreed uponupon or determined on or before the Expiration Date, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of then said extension period (“Initial Meeting Period”), then may commence; from and after such date until the determination amounts of such rentals are determined either by agreement of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received parties or by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth aboveappraisal, Tenant shall provide make payments of such rentals at the then current rates subject to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, retroactive adjustment in conformity with and within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of rentals as hereinabove set forth. In no event shall the Base Monthly Rent for foregoing provisions be deemed to authorize any reduction in rental payments. Except as otherwise hereinabove set forth, all provisions of this lease shall remain in full force and effect throughout said extension period but Tenant shall have no option to further extend the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter dueterm hereof.
Appears in 1 contract
Samples: Boston Life Sciences Inc /De
Option to Extend. Tenant Provided that Lessee is granted an option not in default under the terms of the Lease, Lessee shall have two separate and successive options to extend the Lease term of under the same terms and conditions contained in the Lease Agreement and this First Addendum (including annual Base Rent increases of Two and one-half percent (2.5%)) for one (1) additional successive three (3) year period. The extensions described in this Addendum are personal to Tenant and may not be assigned, voluntarily or involuntarily, separate periods from or as part of the Lease. Such extension shall be on the same terms and conditions as provided in the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for the extension period shall be equal to the fair market rental for the Leased Premises as of the date six (6) months prior to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Base Monthly Rent for the applicable extension period shall not be less than the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease Term. The fair market rental shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to either the expiration date of the initial Lease term or, if the first option has been exercised, of the first extended term (“Renewal Term”). The burden option must be exercised, if at all, by delivering written notice to Lessor no later than 180 days before the end of actual delivery the Lease term or the first extended term Within 30 days after receiving Lessee’s notice of such notice is exercise, Lessor shall compute the rent for the Renewal Term which shall be the Fair Market Rent (‘‘FMR”) for the Premises on a gross rent basis as provided below. Lessor shall then notify Lessee in writing of the Tenantresulting amount. In FMR for the event Tenant exercises Renewal Term shall mean the option hereundermonthly gross rent for the Premises, Tenant shall, within based on tenancies (for a period of one hundred fifty (150) days and one hundred eighty (180) days prior term comparable to the expiration date Renewal Term) covering industrial space of comparable size and quality to the Premises in comparable buildings in comparable locations in the same city as the Premises, taking into account the condition of the initial Lease TermPremises in its then “as is” condition. If Lessor and Lessee have not agreed on an FMR by 60 days after Lessee’s notice of exercise, deliver to Landlordthen each party shall appoint an appraiser who shall be an independent, Tenant’s opinion of disinterested person knowledgeable in rental rates and lease transactions in the fair market rental value, same city as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, The appraisers shall be either real estate appraisers or consultants who have at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five 10 years commercial continuous experience in the City business of appraising or are knowledgeable in which rental rates and lease transactions in the Leased Premises are located involving properties similar to same city as the Property under this LeasePremises. Tenant The two appraisers appointed shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select appoint a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court appraiser within ten (10) 10 days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent last appraiser. The three appraiser shall meet and if they cannot determine FMR on or before 90 days after the date of Lessee’s notice of exercise and a decision of the three appraisers shall be controlling. In the event that the three appraisers are unable to agree upon the same, as set forth abovebase rent within the stipulated period of time, the third agent individual findings of the three (3) appraisers shall select be added together and their total divided by three; the fair market rental value as determined resulting quotient shall be the base rent for the Premises during the remaining term under consideration. Should any of the individual appraisals is more than 15% above or below the middle appraisal, it shall not be considered in determining the FMR. If only one appraisal is disregarded, then the other two appraisals shall be added together and their total divided by either Landlord’s agent or Tenant’s agent which most closely reflects two and the fair market rental value as determined by resulting quotient shall be the third agentbase rent. If both the high and low appraisals are disregarded, then the middle appraisal shall be the base rent. In no event, however, shall the base monthly rent for the extended term be less than the monthly rent at the end of the initial term. Each party shall pay his own agent and bear one-half the cost of the appraisals. The third agent, if appraiser shall be an unrelated entity that has not acted in any capacity for either the Lessor or the Lessee. Should arbitration become necessary, Lessor and Lessee shall be paid by also equally bear the Tenant. The determination shall be signed by both parties and shall thereupon become a part costs of the Lease Agreementarbitration. If Once the Base Monthly Rent parties agree on the monthly gross rent for the applicable extension period has not been determined as of extended term they shall immediately execute an amendment to the commencement of Lease stating the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter duenew monthly gross rent.
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Samples: Fox Factory Holding Corp
Option to Extend. Provided that Tenant is granted an option has not been in default under this Lease beyond any applicable notice, grace or cure period(s), Tenant shall have the right to extend the term of the this Lease Agreement for one (1) additional consecutive three (3) year period. The extensions described in this Addendum are personal period (the “Extended Term”), by executing and delivering to Tenant Landlord the Option Exercise Notice attached hereto as Exhibit B (with all blanks therein fully and may not be assigned, voluntarily or involuntarily, separate from or as part accurately completed by Tenant) no earlier than twelve (12) months and no later than Nine (9) months prior to the expiration of the Leaseinitial Term (the “Extension Option”). Such extension Tenant’s possession and use of the Premises during the Extended Term shall be on pursuant to all of the same terms and conditions as provided in of this Lease, except that (i) Tenant shall not have any further option to extend this Lease and (ii) the Lease Agreement with the exception of Base Monthly Rent. The initial Base Monthly Rent for during the extension period Extended Term shall be equal to the “Fair Market Rent” (as hereafter defined), which initial Base Monthly Rent shall be increased annually on each anniversary of the commencement of the Extended Term (the “Rent Adjustment Date”) by the fair market rental rent increases, determined at the time and in the manner that the initial Base Monthly Rent during the Extended Term is determined, but by not less than the increases incorporated into the initial term (the “Rent Adjustment”). “Fair Market Rent” shall mean the amount of rent that landlords would charge a tenant for built-out space of equal quality and size in the Leased Premises as immediate market area of the date six (6) months prior Premises; provided, however, that in no event may the Fair Market Rent be less than 103% of the Base Monthly Rent payable in the month immediately preceding the Extended Term. If the Extended Term commences before the Fair Market Rent is finally determined as provided in this Section, then the Extended Term shall nonetheless commence and Tenant shall fully and timely perform all obligations under this Lease and pay to Landlord Base Monthly Rent during the Extended Term at 103% of the Base Monthly Rent payable under this Lease in the month immediately preceding the Extended Term until the Fair Market Rent is finally determined as provided hereunder, in which case such determination shall be retroactive to the commencement of the applicable expiration period or on or about the date of the final determination by the arbitrators (set forth below), whichever is higher; however, the initial Extended Term and Tenant shall immediately thereupon pay Landlord any unpaid Base Monthly Rent for during the applicable extension period shall not be less than Extended Term accruing at a rate equal to the Base Monthly Rent plus three percent (3%) as of the expiration of the initial Lease TermFair Market Rent. The fair market rental “Fair Market Rent” shall be determined (a) without consideration for the particular use of the Leased Premises by Tenant but shall be for the permitted use of the Lease Premises, (b) shall take into consideration all Leasehold Improvements that are the property of Landlord or that would become the property of Landlord upon expiration or termination of the Lease (upon Landlord’s election for the same), (c) shall take into consideration any concessions that may then be offered for similar properties (i.e. free rent, tenant improvement allowances, etc.), and (d) without discount for the fact that no leasing commissions shall be paid. The Base Monthly Rent for each extension period shall be subject to three percent (3%) annual increases. It shall be a condition precedent to the exercise of this option that Tenant shall not be in default under the Lease Agreement at the time of exercise of the option for the applicable extension period. If Tenant elects to exercise this option, Tenant shall exercise said option only by written notice actually received by Landlord not less than three hundred sixty-five (365) days prior to the expiration date of the initial Lease Term. The burden of actual delivery of such notice is on the Tenant. In the event Tenant exercises the option hereunder, Tenant shall, within a period of one hundred fifty (150) days and one hundred eighty (180) days prior to the expiration date of the initial Lease Term, deliver to Landlord, Tenant’s opinion of the fair market rental value, as set forth above, and Tenant’s support for such figure (i.e. comparable lease information). Landlord shall thereafter promptly communicate with Tenant as to Landlord’s response to Tenant’s opinion as to the rental value and the parties shall thereafter promptly meet and endeavor to agree upon the fair market rental of the Leased Premises. If the rental for the applicable extension period has not been agreed upon, as set forth above, at least One Hundred Twenty (120) days prior to the commencement of said extension period (“Initial Meeting Period”), then the determination of the rental shall be promptly submitted to arbitration. Tenant shall select, within fifteen (15) days of the expiration of the Initial Meeting Period, referred to above, a licensed real estate agent with at least five years commercial experience in the City in which the Leased Premises are located involving properties similar to the Property under this Lease. Tenant shall provide to Landlord (a) the name, address, company affiliation, and phone number of such agent (b) and a list of the agents qualifications, and (c) a statement that Landlord has fifteen (15) days to nominate Landlord’s own agent, in writing, within such fifteen (15) day period such that such information is actually received by Landlord within such time period. Landlord shall have a period of fifteen (15) days after actual receipt of Tenant’s information, as set forth above, to nominate it’s own agent. Thereafter, said agents shall meet for the purpose of determining the rental, as set forth above, for the applicable extension period. If Tenant fails to so nominate an agent and provide the notice, as set forth above, the Landlord’s reasonable opinion of value shall be the rental value for the applicable extension term. If Landlord fails to nominate an agent, as set forth above, Tenant shall provide to Landlord a written notice setting forth that Tenant’s agent shall determine the rental value if Landlord does not nominate an agent within fifteen (15) additional days. Such notice must be actually received by Landlord before the fifteen (15) days commences to run. If Landlord thereupon fails to so select an agent, the one agent retained by Tenant shall set the fair market rental. If the two agents do not agree upon the rent, as set forth above, within thirty (30) days of their selection, they shall, within fifteen (15) days thereafter, select a third agent with the qualifications, referred to above, and if they do not so agree on a third agent, the third arbitrator shall be appointed by the presiding judge of the Superior Court in the County in which the Leased Premises are located. Tenant shall be required to petition such Court within ten (10) days of the expiration date of the time for the selection of the third agent, as set forth above, requesting the earliest possible determination by the Court. At Landlord’s election, such petition shall be on an ex parte basis with notice and opportunity by Landlord to attend such hearing. The Tenant’s failure to so petition the Court, as set forth herein and within the time period set forth herein, shall void the Tenant’s option exercise. The three agents shall determine whether Landlord’s value or Tenant’s value is closest to the fair market rental, as set forth above, within a thirty (30) day period of the appointment of the third agent and if they cannot agree upon the same, as set forth above, the third agent shall select the fair market rental value as determined by either Landlord’s agent or Tenant’s agent which most closely reflects the fair market rental value as determined by the third agent. Each party shall pay his own agent and the cost of the third agent, if necessary, shall be paid by the Tenant. The determination shall be signed by both parties and shall thereupon become a part of the Lease Agreement. If the Base Monthly Rent for the applicable extension period has not been determined as of the commencement of the applicable extension period, Tenant shall pay an estimated Base Monthly Rent of One Hundred Fifteen percent (115%) of the Base Monthly Rent due for the last month prior to commencement of the applicable extension period. Any deficiency shall be payable by Tenant to Landlord within ten (10) days of the determination of the Base Monthly Rent for the applicable extension period. Any surplus shall be a credit for Base Monthly Rent to become thereafter due.follows:
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