Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land. (b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building. (c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor: (i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or (ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38 (a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease. (d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option. (e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32 (f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Agreement (Lechters Inc)
Expansion Option. (a) The Lessor and Lease is hereby modified so that the Lessee hereby acknowledge and agree that, subject ---------------- language set forth below shall be added to the terms and conditions hereinafter set forth, the Lessee Lease as Article 64 thereof. Option Space ------------
A.1. Named Tenant shall have the option (the "Expansion Option"), by providing a written notice to add to the Lessor (Demised Premises the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary balance of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded entire rentable area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall twenty-sixth (26th) floor of the Building which is not leased to Tenant as shown of the date of this Agreement, at the terms set forth below, provided that on Exhibit "B-4" attached hereto each of the respective Option Notice Dates (as defined below) and made a part hereof. If on each of the Lessee fails to provide the Lessor respective Effective Dates (as defined below) (i) this Lease shall not have been previously terminated, (ii) no default shall have occurred and be continuing after notice in accordance with the Expansion Option Election Notice by the final day terms of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and this Agreement (in which event Tenant's rights under this Article shall not be extinguished but, rather, suspended through the Lessor may, thereafter, utilize earlier of (a) the cure by Tenant and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" expiration of the Phase III Building (as defined in Paragraph 5(b) of this Lease)applicable cure period, but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, that Tenant's rights shall nevertheless be reinstated in the event that Tenant cures any such annual Minimum Rent default after the expiration of the applicable cure period and such cure is accepted by Landlord without termination of this Lease) and (iii) the Tenant shall occupy at least eighty (80%) percent of the Demised Premises as its offices for the Phase III Building shall be increased commencing on the first (1st) anniversary conduct of the Phase III Commencement Date and continuing its business on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessorrespective Effective Dates:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to Rooms 2613-14, which the Phase I Building and Phase II Building, in which event parties agree consist of approximately 1,098 deemed rentable square feet (xthe "2613 Option Space") effective on the Lessor shall have the right to recapture and remove all or any portion earlier of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to July 1, 2000 or (b) the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six days after Landlord delivers written notice to Tenant that the 2613 Option Space is available for leasing by Tenant (6the `2613 Effective Date");
(ii) months after with respect to Rooms 2609-12, which the Phase I Commencement Date under this Lease and parties agree consist of approximately 1,634 deemed rentable square feet (the second "2609 Option Space") effective on the earlier of (2nda) five May 1, 2001 or (5b) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from days after Landlord delivers written notice to Tenant that the Phase III Commencement Date(i.e.2609 Option Space is available for leasing by Tenant (the "2609 Effective Date");
(iii) with respect to Room 2608, which the parties agree consists of approximately 889 deemed rentable square feet (the "2608 Option Space") effective on the earlier of (a) July 1, 2001 or (b) the date which is ten (10) years from days after Landlord delivers written notice to Tenant that the 2608 Option Space is available for leasing by Tenant (the 2608 Effective Date");
(iv) with respect to Room 2615, which the parties agree consists of approximately 1,034 deemed rentable square feet (the "2615 Option Space") effective on the earlier of (a) September 1, 2001 or (b) the date which is two ten (210) years and six days after Landlord delivers written notice to Tenant that the 2615 Option Space is available for leasing by Tenant (6the "2615 Effective Date); and
(v) months from with respect to Rooms 2631-32, which the Phase I Commencement parties agree consist of approximately 1,389 deemed rentable square feet (the "2631 Option Space") effective on the earlier of (a) October 1, 2004 or (b) the date which is ten (10) days after Landlord delivers written notice to Tenant that the 2615 Option Space is available for leasing by Tenant (the "2631 Effective Date) and, therefore), the Lesseeaforementioned option spaces are hereinafter sometimes collectively referred to as the "26/th/ Floor Option Space". Such respective options may be exercised only by Tenant delivering to Landlord a written notice (the "Option Notice") no less than the earlier of (x) two hundred forty (240) days prior to the respective effective dates or (y) ten (10) days after receiving Landlord's First Extension Period under Paragraph 38 notice that the respective option spaces are available for leasing by Tenant (the "Option Notice Date(s)"). In the event that Tenant fails to give any of this Lease would (if properly exercised the respective Option Notices by the Lessee as expressly set forth Option Notice Date(s), Tenant shall be deemed to have waived its option with respect to that particular portion of the 26/th/ Floor Option Space. Notwithstanding anything contained herein to the contrary, Landlord and Tenant agree that in Paragraph 38 connection with the 2613 Space Tenant shall deliver to Landlord Tenant's Option Notice with respect to same on or before April 30, 2000. Time is of the essence with respect to the giving of each of the Option Notices. Upon the giving each of the respective Option Notices, the Tenant shall have no further right or option to lease the 26/th/ Floor Option Space pursuant to the terms of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III.
Appears in 1 contract
Sources: Lease Agreement (Phase2media Inc)
Expansion Option. (a) The Lessor and the Lessee Landlord hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the grants Tenant an option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto Premises into adjacent premises subject and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e.following terms and conditions:
A. If Tenant exercises this option, the Minimum Rent attributable to the Phase III Building Landlord shall be increased by two percent (2%) per annum). Upon obligated to deliver not less than 6,800 square feet nor more than 9,000 square feet, with the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set exact square footage to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Buildingdetermined by Landlord.
(c) If B. This option may be exercised in writing, provided Tenant is not in default in performance of its obligations under the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice at anytime prior to the expiration of the Expansion Option Exercise Periodlease month forty-two (42). In the event the Lessee does If not timely and properly exercise its Expansion Optionexercised, then the Expansion Option shall this option will automatically become be null and void and of no further force and effect and the Lessee shall no longer have the Expansion Optioneffect.
(e) Anything C. The expanded premises will be leased to Tenant under the same terms and conditions as are contained in this Paragraph 39 Lease, except for base rent, which shall be adjusted as hereinafter provided, and Tenant's pro rata share, which shall be adjusted to reflect Tenant's increased square footage.
D. Base rent for the expansion space (which shall be in addition to the contrary notwithstandingbase rent for the original Premises) shall equal the sum of the following:
i. Four and 25/100 Dollars ($4.25) per square foot; plus
ii. The amortized cost per square foot of the leasehold improvement allowance provided to Tenant by Landlord for the expansion premises (up to a maximum of Fifteen and no/100 Dollars ($15.00) per square foot), which amortization shall be at a rate of nine percent (9%) over the Minimum Rent applicable remaining term of the Lease; and
iii. The amortized cost per square foot of unamortized tenant improvements located in the expansion premises prior to tenant's occupancy, based upon a nine percent (9%) rate and a useful life of eight (8) years; the amortization of these costs shall be at a rate of nine percent (9%) over the remaining term of the Lease.
E. The expansion premises shall be delivered to Tenant no earlier than the commencement of lease month forty-nine (49) and no later than the expiration of lease month sixty (60), with the timing of said delivery to be determined by Landlord. Landlord shall provide at least thirty (30) days advance written notice of the delivery date.
F. Upon exercise of this option by Tenant, Landlord and Tenant shall execute an addendum to lease adding the expansion space to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded Premises pursuant to its Expansion Option under this Paragraph 39 the foregoing terms and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.econditions., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Agreement (Bio Vascular Inc)
Expansion Option. (a) The Lessor Provided that (1) Tenant shall not be in default under the Lease; (2) the Lease shall not have been assigned or sublet or transferred by Tenant to any other party except to an Affiliate; (3) Landlord has received written notice from Tenant no later than October 1, 2000 in which Tenant exercises the expansion option set forth herein; and (4) such expansion option and such notice ("Tenant's Election Notice") specifies the Lessee hereby acknowledge and agree thatamount of space that Tenant elects to lease which expansion space must be at least an additional 53,544 square feet, subject to the terms and conditions hereinafter set forth, the Lessee then Tenant shall have the option one time exclusive right to lease up to approximately 178,480 square feet of additional warehouse space contiguous to the Premises (the "Expansion OptionSpace"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary . The building comprised of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) approximately 178,480 square feet of additional space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification DateBuilding.". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for In the Phase III Building for event that all the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessorconditions set forth herein are not met or if Landlord does not receive Tenant's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason Election Notice on or before the date which is twelve (12) months after the October 1, 2000, then this Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice shall be deemed null and void and Landlord shall be free to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove lease all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable Building to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Periodparty. In the event that Tenant elects to lease the Lessee does not timely Expansion Space pursuant to the terms set forth herein, and properly exercise its such Expansion OptionSpace is less than all of the Expansion Building, then Landlord shall be free to lease the balance of such Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionBuilding to any party.
(ec) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, The Expansion Space shall not be affected by the Lessee's exercise of its Expansion Optionexceed approximately 178,480 square feet. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise specifications of the Expansion Option must Building shall be reconciled within the context of equal or better quality than those of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. AccordinglyBuilding, the Lessor shall contain warehouse improvements comparable to those in, on, and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have around the Building expanded pursuant to its (including but not limited to, Expansion Option under this Paragraph 39 Building power distribution, dock levelers, dock seals, and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended todock lights), and shall become, that date which is the day immediately preceding the tenth contain office space equal to three percent (10th3%) year anniversary date of the Phase IIIamount of expansion warehouse space (but in no event more than 3,000 square feet of office space) in addition to men's and women's restrooms comparable to the existing offices and restrooms in the Building. Landlord at Landlord's sole cost and expense, shall build and deliver turnkey Expansion Space to Tenant. Landlord shall construct the Expansion Space and all improvements therein in compliance with all Requirements taking into consideration the
Appears in 1 contract
Expansion Option. (a) The Lessor and Provided no Event of Default exists on the Lessee date of exercise of such option, Landlord hereby acknowledge and agree thatgrants to Tenant, subject to the terms and conditions hereinafter set forthbut not any assignee or subtenant of Tenant, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor an ongoing right to expand the Building by constructing an additional ninety-nine thousand Leased Premises during the initial Term (99,000but not any renewal Term) to include all or any part (but in no event less than 6,000 square feet) of the 39,305 square feet of vacant space as shown as in the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect immediately contiguous to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building Leased Premises and as shown on Exhibit "B-4A" attached hereto and made a part hereofas the "Adjacent Space" (the "Expansion Space"). If Tenant shall notify Landlord in writing of Tenant's intent to exercise its expansion option with respect to the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day portion of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no Space specified therein. If Tenant elects to exercise its expansion option to lease any such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that applicable portion of the Real Property as shown Expansion Space, the terms for the lease of such space shall be the same as the shaded area on Exhibit "A-6" attached hereto and made a part hereof terms for the Leased Premises, with the following exceptions: (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, i) there shall be removed from no abated Base Rent, and (ii) if Tenant's unencumbered cash and marketable securities are equal to two (2) times the applicability sum of this Lease and (a) the Lessor maytenant finish allowance that Tenant will receive as set forth below, thereafter, utilize and develop such portion of the Recapture Land.
plus (b) The annual Minimum Rent the amount of commission Landlord will be obligated to pay for Tenant's expansion into the Adjacent Space, and (iii) that Tenant has positive net income for the Phase III Building for six (6) month period immediately preceding Tenant's exercise, Tenant shall be entitled to a tenant finish allowance as follows:
1. if the expansion option is exercised within the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease)Term, but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building Tenant shall be increased commencing on the first (1st) anniversary receive a tenant finish allowance equal to $10.00 psf of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise applicable portion of the Expansion OptionSpace, the entire Term improvements to, and use of this 31 Lease for the entire Building (i.e.such allowance for, the Phase I Buildingapplicable portion of the Expansion Space to be in accordance with Sections 6.01 and 16.01; and
2. if the expansion option is exercised after the first twelve (12) months of the Term, Tenant shall have the following options: (a) receive a tenant finish allowance equal to $10.00 psf multiplied by a fraction, the Phase II Building numerator of which is the number of months remaining in the Term and the Phase III Buildingdenominator of which is 72, or (bb) shall be automatically re-set receive a tenant finish allowance equal to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, $10.00 psf and extend the Term for the entire Building Leased Premises for a period of sixty (i.e., including 60) months during which extended time Base Rent shall be equal to the Phase I BuildingBase Rent for such seventy-second (72nd) month of the Term. In either event, the Phase II Building improvements to, and use of the Phase III Buildingallowance for the Expansion Space shall be in accordance with Sections 6.01 and 16.
01. Within thirty (30) shall automatically be re-set to be a new ten (10) year Term days from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date Tenant's election to exercise its expansion option, Tenant and the Second Extension Period, if properly exercised pursuant Landlord will use good faith efforts to the provisions of Paragraph 38 above, shall automatically be deemed enter into a written supplement to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither to add the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any applicable portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) Expansion Space to the contrary, a successor or assignee Leased Premises and to modify Tenant's Pro Rata Share of the Lessee may exercise the Extension Options Taxes and Insurance and Operating Expenses as set forth in this LeaseSection 2.04 and 2.05 hereof.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree thatProvided that no Event of Defaults is then existing, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option (the "Expansion Option"), by providing a written notice effective as of the fifth (5th) anniversary of the Commencement Date, to lease all (but not less than all) of the Lessor second level of the Building containing approximately 25,000 square feet of Net Rentable Area (the "Expansion Option Election NoticeSpace") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements be exercised with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first more than twelve (12) months following nor less than nine (9) months prior written notice to Landlord. The portion of the Phase III Commencement Date Expansion Space to be added to the Premises (hereinafter definedthe "Expansion Premises") shall be Three subject to the same terms, covenants and 75/100 Dollars conditions under the Lease, except that ($3.75a) per square feet of space contained in the Phase III Building as measured by Base Rental Rate for the Lessor's architect or engineer (and verified by Expansion Premises shall be the Lessee) from structural line to "structural line" of the Phase III Building prevailing MRR (as defined in Paragraph 5(bExhibit "H" above) as of this Lease)the date such Expansion Space shall be added to the Premises, but not exceeding ninety-nine thousand (99,000b) square feet of space; provided, however, such annual Minimum Rent the Tenant Allowance for the Phase III Building Expansion Premises shall be equal to $15.00 per square foot of Net Rentable Area in the Expansion Premises (and the MRR shall be increased commencing to allow for such improvement allowance), (c) there shall be no refurbishment allowance applicable to such Expansion Premises and (d) the term of such lease shall expire as of the expiration of the Term. Landlord may, on a date established by at least sixty (60) days' notice to Tenant, deliver the first Expansion Premises to Tenant up to three (1st3) months prior to the end of the fifth (5th) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice up to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date end of the Phase III fifth (5th) anniversary of the Commencement Date as opposed to that date which is Date. Within thirty (30) days of receipt of Tenant's notice of the exercise of the Expansion Option, Landlord shall provide Tenant with written notice of its estimation of the MRR for such Expansion Premises. Tenant shall then have fifteen (15) years days to notify Landlord in writing that it accepts or rejects Landlord's determination of MRR and six to provide Landlord with Tenant's estimation of MRR. If the parties cannot agree on a determination of MRR within fifteen (615) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to days thereafter Tenant may either (i) withdraw its Expansion Option under this Paragraph 39 and if or (ii) elect that such MRR shall be determined in accordance with the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly appraisal provisions set forth in Paragraph 38 3 of this LeaseExhibit "H", which MRR shall then be binding on the parties. Tenant shall not be required to pay (and the MRR shall so reflect) commence on that date any amount for parking for such Expansion Premises, which is twelve (12) years and six (6) months following shall be provided in the Phase I Commencement Date same ratios as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease provided with respect to the contrary notwithstandingInitial Premises. Tenant's obligation to commence paying Rent on such space shall commence (A) in the case of space in the Building not previously built out with tenant improvements, upon on the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to90th day, and shall become(B) in the case of previously built out space, that date which is on the day immediately preceding 30th day, after the tenth (10th) year anniversary date availability of such space for the construction of the Phase IIItenant improvements therein.
Appears in 1 contract
Expansion Option. 43.1. Subject to the conditions set forth in this Article 43, Tenant shall have the right, but not the obligation, to expand the Premises (the “Expansion Option”) to include up to (a) The Lessor approximately twenty-five thousand six hundred ninety-nine (25,699) rentable square feet of additional office space and approximately one hundred two thousand five hundred ninety (102,590) rentable square feet of additional manufacturing space in the Lessee hereby acknowledge and agree that, Building (the “Primary Expansion Space”) plus (b) subject to the terms and conditions hereinafter set forth, right of first refusal as of the Lessee shall have the option Execution Date (the "Expansion Option"“Prior Right”) of Revance Therapeutics, Inc. (“Revance”), by providing a written notice to the Lessor approximately thirty-two thousand five hundred seventy (the "Expansion Option Election Notice"32,570) at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) rentable square feet of additional office space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof approximately four hundred twenty-six (the "Phase III Building"426) for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) rentable square feet of spaceadditional manufacturing space in the Building (the “Secondary Expansion Space” and, collectively with the Primary Expansion Space, the “Expansion Space”). The Lessor's Improvements Primary Expansion Space and Secondary Expansion Space are depicted on Exhibit J attached hereto. Notwithstanding anything in this Lease to the contrary, the Expansion Option with respect to the Phase III Building (the "Phase III Lessor's Improvements") Secondary Expansion Space shall be similar subject to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable lawsPrior Right.
43.2. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with Tenant may exercise the Expansion Option Election Notice by the final day of the Expansion Option Exercise Periodproviding Landlord, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is later than twelve (12) months after the Term Commencement Date (the “Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the LesseePeriod”), the Lessee may, by with not less than three (3) months’ prior written notice that Tenant has elected to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration portion of the Expansion Space that Tenant has elected to lease; provided, however, that any Expansion Space leased by Tenant shall be contiguous to the then-current Premises and the remainder shall be in a configuration that is, in Landlord’s opinion, leasable to a third party tenant.
43.3. Within ten (10) days after Tenant exercises the Expansion Option Exercise Period. In with regards to any Primary Expansion Space, Tenant and Landlord shall enter into a written amendment to the event Lease (the Lessee does “Amendment”), which amendment shall provide, unless otherwise agreed in writing, (a) that the commencement date of the Expansion Space shall be the date that is agreed to by the parties but not timely and properly exercise its less than three (3) months after Tenant notifies Landlord that Tenant is exercising the Expansion Option, then but in no event later than the date that is fifteen (15) months after the Term Commencement Date, (b) that the Premises under this Lease shall be increased to include the rentable square feet of the Expansion Option Space, (c) the new Base Rent, which shall automatically become null be determined by multiplying the rentable square feet of the Premises (including the Expansion Space) by the then-current Base Rent per square foot, (d) Tenant’s new Pro Rata Share of Operating Expenses based upon the addition of the Expansion Space to the Premises, (e) the proportionate increase to the Security Deposit (which increase shall be payable to Landlord upon execution of the Amendment), (f) that Landlord shall provide to Tenant a tenant improvement allowance not to exceed Fifteen Dollars ($15) per rentable square foot as of the date first written above (which Tenant shall repay to Landlord as Additional Rent amortized at a rate of nine percent (9%) over the initial Term in accordance with Section 4.1), (g) (provided that Tenant does not lease the entire Building) that Landlord, at its sole cost and expense, shall separate or separately monitor the domestic water, electrical and gas utilities as part of the Premises, but exclusive of the remainder of the Building and install meters or submeters (or other means) to monitor Tenant’s usage of such utilities (if not tied to the meters or submeters for the Premises), (h) (provided that Tenant leases the entire Building) that Tenant shall be responsible for certain additional maintenance obligations related to the Building (to be agreed upon by Landlord and Tenant) that would otherwise be performed by Landlord and (i) (provided that Tenant leases the entire Building) that Articles 43 and 44 shall be void and of no further force or effect. In all other respects, this Lease shall remain in full force and effect effect, and shall (except with regard to the Lessee shall no longer have free rent period at the commencement of the initial Term of this Lease) apply to the Expansion OptionSpace.
43.4. Within three (e3) Anything contained business days after Tenant exercises the Expansion Option with regards to any Secondary Expansion Space, Landlord shall notify Revance in this Paragraph 39 writing in accordance with the terms of Revance’s lease. If Revance does not timely exercise the Prior Right with respect to the contrary notwithstandingany such Secondary Expansion Space, the Minimum Rent applicable to the Phase I Building Landlord and the Phase II Building shall continue to be as expressly set forth in this Lease andTenant shall, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new within ten (10) year term days after the lapse of Revance’s right to notify Landlord that it desires to lease such Secondary Expansion Space pursuant to the Prior Right, enter into an Amendment in accordance with Section 43.3 with respect to such Secondary Expansion Space.
43.5. In the event that Tenant timely exercises the Expansion Option with respect to and leases less than all of the Expansion Space, the Expansion Option shall remain effective with respect to the remainder of the Expansion Space for the remainder of the Expansion Option Period, subject to the terms of this Article 43. Notwithstanding anything in this Lease to the contrary, in the event that Tenant leases the entire Building (i.e., including the Phase I Building, the Phase II Building and Premises shall be deemed to consist of three hundred five thousand twenty-six (305,026) rentable square feet, subject to adjustment in accordance with Section 7.1.
43.6. Notwithstanding anything in this Article 43 to the Phase III Building) upon contrary, Tenant shall not exercise the Lessee's Expansion Option during such period of time that Tenant is in default under any provision of this Lease. Any attempted exercise of the Expansion Option must during a period of time in which Tenant is so in default shall be reconciled within the context void and of the Lessee's no effect. In addition, if Tenant has Defaulted under this Lease two (2) Extension Options of five or more times during the twelve (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor 12)-month period immediately prior to the Lessee on date that date which is two (2) years and six (6) months following Tenant exercises the Phase I Commencement DateExpansion Option, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.ewhether or not Tenant has cured such Defaults., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease (Daystar Technologies Inc)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option to lease the following office space (collectively, the "Expansion OptionSpace") consisting of ( i) 8,242 rentable square feet located on the 31st floor of the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ currently occupied by Tenant under the terms of the Lease ("31st -28- Floor Space") and (ii) either, at Landlord's option, 25,540 rentable square feet located on the 26th floor of the 10 South ▇▇▇▇▇▇ Building ("Suite 2600") which is depicted on Exhibit F or 25,324 rentable square feet located on the 20th floor of the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ which is depicted on Exhibit G ("Suite 2000"), . Each Expansion Option shall be exercised by providing a written notice to the Lessor Landlord on or before (the "Expansion Option Election Notice"i) at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period")June 1, of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements 2003 with respect to the Phase III Building 31st Floor Space and (the "Phase III Lessor's Improvements"ii) shall be similar to the Phase II Lessor's ImprovementsJuly 1, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent 2003 with respect to the Phase III Building.
(c) If the Phase III Commencement Date has either Suite 2000 or Suite 2600, provided that such notice will not occurred for be effective if any reason on or before uncured default then exists and applicable grace periods with respect thereto have then expired, and provided further that, with respect to ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ may accelerate the date by which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations Tenant must exercise its option under this Lease, or
clause (ii) continue this Lease with respect to the Phase I Building and Phase II Buildinga date no earlier than April 1, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date 2003 which is ten (10) years days after notice by Landlord to Tenant that Landlord has negotiated the terms of and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 is prepared to sign a bona fide lease of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date not less than 10,000 square feet of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this LeaseSuite 2000. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its If such Expansion Option under this Paragraph 39 is timely exercised, (i) the 31st Floor Space shall be delivered to Tenant and if the Phase III Building is delivered by the Lessor added to the Lessee Premises on that date which is two (2) years and six (6) months following the Phase I Extension Commencement Date, then (ii) if Landlord designates ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ shall be delivered to Tenant and added to the Term Premises on January 1, 2004 and (iii) if Landlord designates ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ shall be delivered to Tenant and added to the Premises on July 1, 2004 or such earlier date as to which Tenant may agree. Base Rent for the entire Building (i.e.Expansion Space shall be based upon the base rental rates applicable to the other Office Premises. Notwithstanding Section 14.C., including Tenant shall not, without Landlord's consent, sublease the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would 31st Floor Space or Suite 1818 (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date such space becomes part of the Phase IIIPremises) to Members.
Appears in 1 contract
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject Subject to the terms and conditions hereinafter set forthof this Section 2.5 and subject to the pre-existing rights of Transystems, the Lessee Inc., as shown on Exhibit FO, Tenant shall have the option right to expand the Premises to include 16,640 rentable square feet of space on the first floor of the Building, in the location shown on Exhibit FP-1 (the "Expansion OptionPremises"), provided and on condition that (i) this Lease is in full force and effect, (ii) no Default of Tenant shall have occurred and be continuing (either at the time of exercise or at upon the Expansion Premises Commencement Date), (iii) Tenant shall not have assigned this Lease or vacated or sublet more than 20,000 rentable square feet in the Premises, other than in connection with a transfer for which Landlord's consent is not required under Article VI (any of which conditions described in clauses (i), (ii), and (iii) may be waived by providing a written notice to the Lessor (the "Expansion Option Election Notice") Landlord at any time prior in Landlord's sole discretion). If Tenant shall give Landlord written notice no later than the date that is twelve months after the date of this Lease electing to so expand the second (2nd) anniversary Premises, then Landlord shall deliver possession of the Phase I Expansion Premises to Tenant on the Expansion Premises Commencement Date (as defined below). If Tenant shall fail to timely deliver such two notice electing to so expand the Premises, Tenant shall be deemed to have waived such right, and Landlord shall thereafter be free to lease all or any portion of the Expansion Premises to such parties and on such terms as Landlord shall determine in its sole discretion, subject to the provisions of Section 2.6 below.
(2b) year period being Promptly after the date of Tenant's notice, Landlord shall commence and use commercially reasonable efforts to perform certain improvements to the Expansion Premises in order to fit out the space in accordance with a Building standard level of finish consistent with the level of finish for Landlord's Work in the remainder of the Premises, and a ratio of twenty percent (20%) office space to eighty percent (80%) open space. Such work shall be performed in accordance with and subject to the requirements for Plans, timing of Landlord's Work, Tenant Delay, punchlist, warranty, and other requirements applicable to the initial Premises set forth in Article IV below. The date that Landlord has substantially completed such work and delivered the Expansion Premises to Tenant is hereinafter referred to as the "Expansion Option Exercise PeriodPremises Commencement Date"). Landlord shall use commercially reasonable efforts to deliver the Expansion Premises to Tenant on or before the date that is five (5) months after the date of Tenant's notice. As of the Expansion Premises Commencement Date, of requiring the Lessor Premises under this Lease shall be expanded to expand include the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as Expansion Premises. Once incorporated into the shaded area on Exhibit "B-4" attached hereto Premises, Tenant's rights and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements obligations with respect to the Phase III Building (the "Phase III Lessor's Improvements") Expansion Premises shall be similar subject to and with the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with benefit of all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto terms and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) conditions of this Lease), but not exceeding ninety-nine thousand except that: (99,000i) the Basic Rent per square feet of space; provided, however, such annual Minimum foot applicable to the Expansion Premises shall equal the Basic Rent per square foot for the Phase III Building remainder of the Premises; (ii) the Term of the Lease with respect to the Expansion Premises shall be increased commencing on coterminous with the first (1st) anniversary remainder of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(cPremises; (iii) above (i.e., the Minimum Rent attributable to the Phase III Building Tenant shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional such additional amount of Basic Rent with respect to the Phase III Building.
First Expansion Premises on the Expansion Premises Commencement Date; and (civ) If the Phase III Commencement Date has not occurred for any reason on or before Escalation Factor shall be revised to reflect the date which is twelve (12) months addition of the Expansion Premises to the Premises in accordance with the Escalation Factor Computation. Promptly after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused byPremises Commencement Date, or attributable to, the Lessee), the Lessee may, by written notice Landlord and Tenant agree to Lessor:
(i) terminate this Lease, whereupon enter into an amendment to this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither memorializing the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion addition of the Recapture Land from the applicability of Expansion Premises to this Lease and the Lessor mayamendment to the applicable defined terms hereunder, thereafterincluding, utilize without limitation, Premises, Basic Rent, Term and develop such portion Escalation Factor, but failure of the Recapture Land, (y) Paragraph 23(b) parties to execute such an amendment shall be deemed omitted from this Leasehave no effect on the expansion of the Premises to include the Expansion Premises, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contraryeconomic terms associated therewith, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Leaseabove.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor Provided this Sublease is in full force and the Lessee hereby acknowledge effect and agree that, subject to the terms and conditions hereinafter set forthhereof, the Lessee Subtenant shall have the ongoing option (the "“Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice"”) at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon into that certain portion of space in the Real Property immediately adjacent to the westerly side wall of the 12790 Building known as Suite 100 and shown on Exhibit "B-4" F attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the (“Expansion Option Election Notice by the final day Space”) upon all of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease same terms and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown conditions as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (Subleased Premises. In the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line event Subtenant wishes to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) Subtenant shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent provide Sublandlord with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice of Subtenant’s desire to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must (the “Expansion Notice”), and, provided the Expansion Option Conditions (defined below) are satisfied and Prime Landlord has provided its written consent, the Subleased Premises shall be reconciled within expanded to include the context Expansion Space, subject to the following: (1) the Base Rent payable for and other economic terms applicable to the Expansion Space shall be at the same Base Rent rate and upon the same economic terms (prorated as of the Lessee's two commencement date for such Expansion Space) then in effect for the Subleased Premises as of the commencement date for such Expansion Space and shall escalate at the same time and at the same rate as the Base Rent for the Subleased Premises; (2) Extension Options Subtenant shall accept the Expansion Space vacant and broom clean, but otherwise in its “as is” condition; (3) the sublease term applicable to Expansion Space shall be coterminous with the Term for the Subleased Premises and (4) Base Rent for Expansion Space shall be subject to abatement on the same terms and conditions as provided in Section 6(d) below; provided that the length of five the Abatement Period shall be prorated as of the commencement date for the Expansion Space based on the length of the Sublease Term as to the Expansion Space (e.g., if the Term of the Sublease as to the Expansion Premises is 60% of the original Term of this Sublease, then the Abatement Period for the Expansion Space shall be 4.2 months (60% of 7 months))and (5) years each under Paragraph 38 provided Prime Landlord has provided its written consent, upon Subtenant’s exercise of the Expansion Option pursuant to this Lease. Accordinglysection, the Lessor and parties shall execute an amendment to this Sublease reflecting the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Leaseterms set forth herein. For purposes of illustration onlythis Sublease, if the Lessee elects to have the Building expanded pursuant to its term “Expansion Option under this Paragraph 39 Conditions” shall mean: i) no Event of Default has occurred and if is then continuing at the Phase III Building is delivered by time Subtenant delivers the Lessor to Expansion Notice; (ii) Subtenant has not assigned the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be Sublease nor subleased all or a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date part of the Phase IIISublease Premises (other than to a Permitted Transferee); (iii) Sublandlord did not deliver a ROFR Notice to Subtenant for which Subtenant did not provide an Acceptance Notice.
Appears in 1 contract
Expansion Option. Provided no material Event of Default by Tenant has occurred, Tenant shall have the first refusal to lease the area identified on Exhibit “A” to this Fourth Amendment to Lease Agreement as the Option Space known as ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ containing 2,606 square feet and 6,459 square feet respectively (herein so called) on the following terms and conditions:
(a) The Lessor and In the Lessee hereby acknowledge and agree thatevent of a bona fide offer for any part of the Option Space, subject Landlord shall give written notice (the “Notice”) to Tenant specifying the terms of such offer, and conditions hereinafter set forth, the Lessee Tenant shall have the option (to lease the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent Option Space described in the Notice upon the terms stated in the Notice. As used herein, “bona fide offer” shall mean either a binding or non-binding letter of intent or proposal to the westerly side wall or from a specific prospective tenant containing a statement of the Building as shown on Exhibit "B-4" attached hereto and made material economic terms for a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day lease of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture LandSpace.
(b) The annual Minimum Rent for Landlord must receive written notice from Tenant of its unconditional and irrevocable acceptance of the Phase III Building for terms stated in the first twelve Notice no later than five (125) months following days after Tenant’s receipt of the Phase III Commencement Date (hereinafter defined) Notice; failing which, Landlord shall be Three free for a period of three hundred sixty-five (365) days thereafter to lease all or any part of the Option Space, and 75/100 Dollars ($3.75) per square feet of space contained in connection with such leasing, Landlord may agree to changes to the terms stated in the Phase III Building Notice without Tenant’s consent or approval so long as measured by such changes are the Lessor's architect result of arm’s-length negotiations between Landlord and a prospective tenant and not the result of bad faith or engineer collusion. To the extent (and verified by only to the Lesseeextent) from structural line to "structural line" any part of the Phase III Building (as defined Option Space has not been so leased or becomes available again at the end of such 365-day period, Tenant’s right of refusal under this Paragraph shall remain in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Buildingeffect.
(c) If Landlord has received written notice from Tenant of its unconditional and irrevocable acceptance of the Phase III Commencement Date has terms stated in the Notice not occurred for any reason on or before later than five (5) days after Tenant’s receipt of the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable toNotice, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from Option Space described in the applicability of this Lease and Notice shall be deemed added to the Lessor mayPremises, thereafter, utilize and develop Landlord shall deliver such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) Option Space to the contraryTenant at the time and in the condition described in the Notice, a successor or assignee Tenant shall commence payment of Minimum Rent and Additional Rent with respect to such portion of the Lessee may exercise the Extension Options as set forth Option Space in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under accordance with the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration Notice, and all other terms of Tenant’s leasing and occupancy of such portion of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option Space shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth provided in this the Lease and, except as set forth otherwise provided in Subparagraph (f) below and on Exhibit "J" attached the Notice. When requested by Landlord, Tenant shall execute an appropriate amendment to this Lease and made a part hereof, shall not be affected by to reflect the Lessee's exercise addition of its Expansion Optionsuch portion of the Option Space to the Premises. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I BuildingExcept as expressly amended hereby, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years remain in full force and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eeffect., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Agreement (Immucor Inc)
Expansion Option. 25.1 Provided no Event of Default exists, Tenant may lease up to 5,175 Rentable Square Feet designated on Exhibit A-1 (the “Expansion Space”), by delivering to Landlord, on or before December 31, 2017, written notice of Tenant’s election to include such space in the Premises, which notice must include the portion of the Expansion Space that Tenant intends to occupy. If Tenant timely exercises its option, then (a) The Lessor possession of the Expansion Space shall be delivered to Tenant in an “AS-IS” condition on the date Landlord delivers possession of the Expansion Space to Tenant (the “Expansion Date”), and (b) Tenant and Landlord shall execute an amendment to this Lease including the Expansion Space in the Premises on the same terms as this Lease, except as follows: (i) the Rentable Square Feet of the Premises shall be increased by the Rentable Square Feet in the Expansion Space; and (ii) the Basic Rent for the Expansion Space shall be equal to the per Rentable Square Foot Basic Rent for the Premises then currently payable (provided, Landlord will ▇▇▇▇▇ Basic Rent and Tenant’s Proportionate Share of Operating Expense Rental and Real Estate Tax Rental for the Expansion Space for the first one hundred twenty (120) days following the Expansion Date) and Landlord will provide Tenant with the same per square foot Tenant Work Allowance as provided for the Premises, multiplied times a fraction, the numerator of which is the number of months remaining in the Term as of the date of the Expansion Date and the Lessee hereby acknowledge and agree thatdenominator of which is the number of months in the Term.
25.2 If Tenant fails or is unable to timely exercise its right hereunder, subject to the terms and conditions hereinafter set forthsuch right shall lapse, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary being of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements essence with respect to the Phase III Building exercise thereof (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvementsit being understood that Tenant’s right hereunder is a one-time right only), but in any event, the Phase III Lessor's Improvements shall comply with and Landlord may lease all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain or a portion of the Real Property immediately adjacent Expansion Space to the westerly side wall third parties on such terms as Landlord may elect, subject to Article XXVIII. Tenant’s rights under this Article XXV shall terminate if (a) this Lease or Tenant’s right to possession of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise PeriodPremises is terminated, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet Tenant assigns any of space contained its interest in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or sublets any portion of the Recapture Land from Premises, or (c) Landlord determines, in its sole but reasonable discretion, that Tenant’s financial condition or creditworthiness has materially deteriorated since the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms date of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration Park Ten Plaza – RigNet, Inc. Table of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIContents
Appears in 1 contract
Sources: Office Lease (RigNet, Inc.)
Expansion Option. (a) The Lessor and During the Lessee hereby acknowledge and agree thatTerm of this Lease, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the continuing option to lease an addition or multiple additions on the Real Estate of similar quality and design (the "“Expansion Option"), by providing a written notice Space”) to the Lessor Leased Premises of up to Two Hundred Thousand Seventy (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000200,070) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of spaceFloor Area. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day Lease of the Expansion Option Exercise PeriodSpace shall be on the same general terms and conditions specified in this Lease for the original Leased Premises, then other than for the Lessee's Expansion Option shall automatically cease and terminate adjustment of Base Rent and the Lessee Term as set forth in this Section 6.7. To exercise this expansion option, Tenant shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion give Landlord at least Three Hundred Sixty-Five/Sixty-Six (365/366) days, as applicable, written notice of the Real Property as shown as intended date of possession of the shaded area on Exhibit "A-6" attached hereto and made a part hereof Expansion Space (the "Recapture Land"“Expansion Space Option Notice”), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, . This option shall be removed from available to Tenant so long as no uncured Event of Default is in existence at the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion time of the Recapture Landdelivery of the Expansion Space Option Notice or the delivery date of the Expansion Space to Tenant.
(b) The annual Minimum At the time the Expansion Space is delivered to Tenant (the “Expansion Space Delivery Date”), the Expansion Space shall be deemed part of the Leased Premises and, if the then current Term is less than seven (7) years, the current Term will be extended from the remaining term thereof (the “Remaining Term”) for a period (the “Extended Period”) sufficient to create a seven (7) year then current Term. Each remaining Option Term, if any, will be adjusted to commence based on the Extended Period or the applicable anniversary thereof. Such adjustments will be reflected in an Expansion Space Notice to be executed by Landlord and Tenant within thirty (30) days following the Expansion Space Delivery Date.
(c) Base Rent for the Phase III Building original Leased Premises shall remain as specified in Section 1.7 above for the first twelve (12) months following balance of the Phase III Commencement Date (hereinafter defined) Remaining Term and shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in increased for the Phase III Building as measured Extended Period by an amount equal to the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" product of the Phase III Building annual Base Rent during the Remaining Term and the percentage increase, if any, of the Consumer Price Index (as defined in Paragraph 5(bthe “CPI”) since the commencement of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of spacethe then current Lease Period; provided, however, such annual Minimum Rent for that the Phase III Building CPI increase shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by not exceed two percent (2%) per annum)year. Upon Base Rent for the Lessee's proper exercise Expansion Space shall be computed on the basis of an eight (8%) return to Landlord on the actual costs payable by Landlord for construction supplies and labor, architectural and engineering fees for the balance of the Expansion Option, the entire Term of this 31 Lease then current Term. Base Rent for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) Leased Premises on any succeeding Option Period shall be automatically re-determined as set to be a new ten (10) year Term from forth in Section 3.2, taking into account the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., full Leased Premises including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III BuildingSpace.
(cd) If the Phase III Commencement Date has not occurred for any reason Landlord shall obtain at least three (3) construction bids on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused bySpace, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor Tenant shall have the right to recapture and remove all or any portion of approve the Recapture Land from plans for the applicability of this Lease Expansion Space and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Leasebids accepted for construction thereof.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree thatAt any time prior to February 28, subject to the terms and conditions hereinafter set forth1999, the Lessee Tenant shall have the option to expand the Premises to include either (i) all of the office space on all or one or more entire floors of the Fourth (4th), Fifth (5th) and Sixth (6th) Floors of the Building, or (ii) all of the office space on all or one or more entire floors of the Sixth (6th), Tenth (l0th) and Eleventh (11th) Floors of the Building (the "Expansion OptionSpace"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being which option hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If Option." Tenant shall not be entitled to exercise the Lessee properly exercises its aforesaid Expansion Option as hereinafter set forthto lease Expansion Space if, then at the Lessor shall construct time Tenant is entitled to exercise said option, Tenant has subleased or has entered into an agreement to sublease in the Phase III Building upon that certain portion future more than twenty-five percent (25%) of the Real Property immediately adjacent to the westerly side wall then total amount of rentable square feet of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with Premises, unless Tenant itself occupies at all times the Expansion Option Election Notice by Space and does not relocate its employees from the final day initial Premises into the Expansion Space in order to comply with this provision. To exercise the Expansion Option, Tenant must deliver to Landlord written notice of the exercise of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement DateNotice") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after February 28, 1999. If Tenant delivers to Landlord the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable toNotice within the time provided herein, the Lessee), Expansion Space shall be leased upon all of the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified same terms and conditions set forth in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building Premises (which terms and Phase II Buildingconditions shall be adjusted proportionately to account for the increased rentable square footage of the Premises upon inclusion of the Expansion Space), in which event except that: (x1) the Lessor Lease Term with respect to the Expansion Space shall have commence on the right later of (A) September 1, 2000, or (B) the date on which Landlord delivers the Expansion Space to recapture Tenant; (2) Tenant shall be obligated to pay Base Rent and remove all Additional Rent for the Expansion Space beginning on the date that is 120 calendar days after the date on which Landlord delivers the Expansion Space to Tenant; (3) if Tenant exercises the Expansion Option with respect to Expansion Space on the Tenth (10th) or any portion Eleventh (11th) Floors, the Base Rental for that space shall be Two Dollars ($2.00) per rentable square foot greater than that for the remainder of the Recapture Land Premises; and (4) Landlord shall provide to Tenant an "Expansion Space Improvement Allowance" equal to Twenty-Seven and 50/100 Dollars ($27.50) per rentable square foot of the Expansion Space, which shall be paid by Landlord, and may be used by Tenant in accordance with the purposes set forth in Paragraph 3(d), above. The Expansion Space Improvements shall be constructed in accordance with the provisions of EXHIBIT B and the Expansion Space Improvement Allowance shall be paid in accordance with the provisions of Exhibit B.
(b) Landlord shall use commercially reasonable efforts to deliver the Expansion Space to Tenant by September 1, 2000, or as soon thereafter as possible, by taking all reasonable steps to recover possession of the Expansion Space from the applicability entity that is the tenant of the Expansion Space as of the date of execution of this Lease (the "Current Expansion Space Tenant"). If Landlord does not deliver the Expansion Space to Tenant by September 1, 2000, and as a direct result Tenant is forced to hold over under its existing lease for premises at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the Lessor may"Existing Lease"), thereafter, utilize and develop such portion then Landlord shall reimburse Tenant for the amounts paid by Tenant under the Existing Lease for the period during which Tenant occupies space pursuant to the Existing Lease after the expiration of the Recapture Land, Existing Lease by reason of Landlord's failure to timely deliver the Expansion Space (ythe "Expansion Holdover Period") Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained that are in Paragraph 38
(a) to the contrary, a successor or assignee excess of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal amounts Tenant would have been obligated to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise pay during the Expansion Option as set forth Holdover Period if those amounts were required to be paid at the rate in this Lease and as permitted effect under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice Existing Lease immediately prior to the expiration of the term of the Existing Lease, provided that the total amount of any such reimbursement shall not exceed the amount actually received by Landlord as rent from the Current Expansion Option Exercise PeriodSpace Tenant after September 1, 2000 that are in excess of the amounts the Current Expansion Space Tenant would have been obligated to pay after the expiration of its lease for the Premises if those amounts were required to be paid at the rate in effect under the Current Expansion Space Tenant's lease for the Premises immediately prior to the expiration of the term of that lease. In Tenant shall have the right to rescind the exercise of this expansion option in the event the Lessee does not timely and properly exercise its Expansion Option, then that Landlord fails to deliver the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionSpace to Tenant by June 30, 2001, provided that Tenant exercise said option to rescind by giving written notice thereof to Landlord by July 10, 2001.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor Those certain premises being suites 110 (approximately 8,231 rsf) and 112 (approximately 4,824 rsf), in the Building located on the first floor and as shown on Exhibit “H” attached hereto (each an “Expansion Space”) are, as of the date of this Lease, not leased to another party. If, on or before April 1, 2017 (the “Outside Offer Date”), Tenant desires to lease any or all of the Expansion Spaces, Tenant shall have the exclusive option (the “Expansion Option”) to expand the size of the Premises to include any or all of the Expansion Space(s) (the “Expansion Option”) by providing written notice to Landlord of such intention (the “Tenant Expansion Notice”). Provided Landlord receives the Tenant Expansion Notice prior to the Outside Offer Date, Tenant’s lease of the subject Expansion Space shall be pursuant to the terms of this Lease except that: (i) the financial terms for Tenant’s lease of the subject Expansion Space shall be consistent with the terms of this Lease with respect to Fixed Rent/rsf and scheduled escalations for the Premises as set forth in Section 4 of the Lease; (ii) the commencement date of the lease of the Expansion Space shall be the date that is 150 days following the exercise of the Expansion Option and the Lessee hereby acknowledge term shall be coterminous with the Term set forth in Section 3(a); (iii) the subject Expansion Space shall be leased in its “as is”, “where is” condition and agree thatLandlord shall have no obligations whatsoever to improve or pay to improve the Expansion Space for Tenant’s use or occupancy, provided that Landlord shall provide Tenant with an additional allowance to improve the subject Expansion Space with such allowance to be equal to $00.32308/rsf for each month of the Expansion Space term (for example, if the Expansion Space term commenced August 1, 2017, for Suite 110, the allowance would equal 129 months x $00.32308 x 8,231 = $343,046.02); (iv) Tenant’s Proportionate Share shall be increased pro rata; (v) the Security Deposit will increase on a pro rata basis determined by Fixed Rent payable before and after the lease of the Expansion Space; and (vi) Fixed Rent, but not Tenant Energy Costs, shall be conditionally abated at the rate equal to $00.17147/rsf for each month of the Expansion Space term (for example, if the Expansion Space term commenced August 1, 2017, for Suite 110, the abatement would equal 129 months x $00.17147 x 8,231 = $182,066.67) to be applied 50% to the first 5 months and 50% during months 13-17 of the Expansion Space term. Any improvements made to the Expansion Space shall be made by Landlord subject to the terms of Section 8, with a management fee payable to $1.02/rsf for the Expansion Space improvements plus two percent (2%) of the net cost increase or decrease resulting from any Change Order.
(b) Notwithstanding anything to the contrary contained in this Lease, the term of the Lease for the Expansion Space shall expire on the date set forth in this Lease as the Expiration Date (as the same may be extended pursuant to Section 39 hereof).
(c) If (i) Tenant does not notify Landlord prior to the Outside Offer Date that Tenant desires to lease the Expansion Space, this Expansion Option shall terminate and the Expansion Space shall after such Outside Offer Date be deemed an Un-Leased RFO Space as defined in Section 41 of the Lease and shall thereafter be subject to the terms and conditions hereinafter as set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but forth in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture LandSection 41.
(bd) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of If Tenant exercises the Expansion Option, the entire Term space described in Tenant’s Expansion Notice will be deemed a part of the Premises under this 31 Lease for the entire Building (i.e.whether or not a lease amendment is signed, the Phase I Buildingbut upon written request of Landlord, the Phase II Building and the Phase III Building) Tenant shall be automatically re-set execute an amendment to be a new this Lease incorporating such terms within ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion business days of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionLandlord’s request.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise Time is of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed essence with respect to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eTenant’s obligations hereunder., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Agreement (Trevena Inc)
Expansion Option. (a) Landlord presently owns the property lying easterly of the Property and commonly known as 3▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ (the “Expansion Property”). The Lessor Expansion Property is presently operated as a commercial warehouse facility, but it is also Landlord’s present intention to redevelop the Expansion Property as a biotechnology facility during calendar year 2005, and the Lessee hereby acknowledge and agree thatLandlord agrees to undertake such redevelopment, subject to the terms and conditions hereinafter set forthforth in this Section 6.3, the Lessee in order to accommodate any proper exercise of Tenant’s rights under this Section 6.3. Tenant shall have the a one-time option (the "“Expansion Option"”), by providing exercisable only in accordance with this Section 6.3, to lease a written minimum amount of at least 100,000 square feet of redeveloped biotechnology space on the Expansion Property; provided, however, that the Expansion Option shall not apply if Tenant is in default under this Lease (beyond any applicable notice and cure periods) on the date the Expansion Option is exercisable. The exact size and location of the space subject to the Lessor Expansion Option within the Expansion Property (the "“Expansion Option Election Notice"Space”) shall be mutually agreed upon in writing by Landlord and Tenant, subject to the minimum size of 100,000 square feet as specified above, after Landlord has approved a final design and site plan for the redevelopment of the Expansion Property. If Tenant notifies Landlord in writing, at any time least seventy-five (75) days prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day must be exercised, that Tenant is considering exercise of the Expansion Option Exercise Period(which notice may be given by Tenant in its sole and absolute discretion), then (i) Landlord agrees to adopt and approve a final design and site plan for the Lessee's redevelopment of the Expansion Property at least forty-five (45) days prior to the date the Expansion Option shall automatically cease must be exercised, in order to allow a reasonable time for the parties to reach mutual agreement regarding the size and terminate location of the Expansion Space in a timely manner and (ii) Landlord and Tenant agree to negotiate diligently, reasonably and in good faith to reach such an agreement regarding the Lessee shall have no such size and location of the Expansion Space at least fifteen (15) days prior to the date the Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may must be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Landexercised.
(b) The annual Minimum Rent for Expansion Option shall be exercisable only by written notice from Tenant to Landlord no later than March 1, 2005, and only if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods). Such written notice (the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined“Exercise Notice”) shall be Three state that Tenant is exercising the Expansion Option hereunder and 75/100 Dollars shall state specifically the phasing ($3.75if any) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to which Tenant proposes to occupy the provisions of Paragraph 5(c) above (i.e.Expansion Space, the Minimum Rent attributable subject to the Phase III Building shall be increased by two percent (2%) per annum)limitations hereinafter set forth. Upon the Lessee's proper exercise timely giving of the Expansion Optiona timely Exercise Notice by Tenant, the entire Term of this 31 Lease (i) Landlord shall proceed with reasonable diligence and with commercially reasonable efforts to obtain all governmental approvals required for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building Expansion Space, including, but not limited to, any governmental approvals required for the redevelopment of the Expansion Property to accommodate the construction of the Expansion Space (provided that if Landlord is unable, despite the "Phase III Commencement Date"exercise of reasonable diligence and commercially reasonable efforts, to obtain all such required governmental approvals within six (6) andmonths after delivery of Tenant’s Exercise Notice, therefore, the First Extension Period, if properly exercised pursuant then upon written notice thereof by either party to the provisions of Paragraph 38 aboveother, Tenant’s Exercise Notice shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date be rescinded and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action shall be of no further force or inactioneffect) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect subject to the Phase I Building and Phase II Buildingreceipt of such required governmental approvals, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) Expansion Space shall be deemed omitted from this Lease, leased to Tenant on the following terms (and (z) notwithstanding anything contained in Paragraph 38
(a) to on the contrary, a successor or assignee of the Lessee may exercise the Extension Options as additional terms and provisions set forth in this Lease.
(d) , except for Article 6 hereof and except to the extent inconsistent with the terms specified in this Section 6.3): The Expansion Option Space shall, at Tenant’s election as set forth in the Exercise Notice, be leased and occupied either all at once, with a single Rent Commencement Date, or in two separate phases, with the first phase having a minimum size of at least fifty percent (50%) of the total Expansion Space and the second phase constituting the balance of the Expansion Space. The Rent Commencement Date for the Expansion Space (or for the first phase thereof, if applicable) shall be personal determined in the same manner as provided in Section 2.1 hereof (180 days after Landlord’s delivery of a Structural Completion Certificate, subject to any adjustments applicable under the Workletter, or on the date Tenant takes occupancy of and commences operation of its business in the applicable space, whichever occurs first), provided that such Rent Commencement Date shall not occur prior to December 1, 2006 unless triggered at an earlier date by Tenant’s occupancy of and commencement of operation of its business in the applicable space or unless an earlier date is mutually agreed upon by Landlord and Tenant. If Tenant elects to take down the Expansion Space in two phases as provided above, then the Rent Commencement Date for the second phase of the Expansion Space shall occur on the earlier of December 1, 2007 or the date Tenant actually occupies and commences operation of its business in the second phase of the Expansion Space, unless an earlier date is mutually agreed upon by Landlord and Tenant. Landlord shall perform the equivalent of Landlord’s Work (as defined in the Workletter) at its sole cost and expense, for the Expansion Space, subject to such modifications of the scope and definition of Landlord’s Work as are consistent with Landlord’s design, plans and specifications for the other buildings and facilities to be constructed on the Expansion Property, and Tenant shall be entitled to a Tenant Improvement Allowance of One Hundred Thirty-Five and No/100 Dollars ($135.00) per square foot for the Expansion Space. The minimum monthly rental commencing as of the Rent Commencement Date for the Expansion Space (or for the first phase thereof, if applicable) shall be $4.43 per square foot per month, with annual escalations thereafter on each anniversary of such Rent Commencement Date in an amount equal to three percent (3.0%) of the rental rate in effect immediately prior to the Lessee applicable escalation date. If Tenant elects to take down the Expansion Space in two phases as provided above, then the minimum monthly rental applicable to the second phase as of the Rent Commencement Date for such second phase shall be equal to the minimum monthly rental rate then in effect for the first phase, and the same minimum monthly rental rate for the second phase shall not thereafter at all times be equal to the minimum monthly rental rate in effect for the first phase from time to time, as escalated in accordance with the foregoing provisions. Tenant’s Operating Expense obligations with respect to the Expansion Space shall be determined in a manner both similar to and proportional to the Operating Expense obligations of other tenants of the Expansion Property, depending on whether, in Landlord’s discretion, the Expansion Property is combined with the Center for Operating Expense purposes or is operated on a stand-alone basis for such purposes, and if operated on a stand-alone basis, whether the Expansion Property is operated on a project-wide basis for Operating Expense purposes or the respective buildings within the Expansion Property are operated in whole or in part on a stand-alone basis for such purposes. Following a timely exercise of the Expansion Option by Tenant, the parties shall promptly (and in all events within ten (10) business days after delivery of Tenant’s Exercise Notice) execute a lease amendment or other written agreement reflecting the terms applicable to any successor or assignee the Expansion Space as set forth above and reflecting all other terms and provisions of this Lease not inconsistent with the Lessee (other than a corporate successor or affiliate of terms set forth above, except for Article 6 hereof and except as the Lessee) parties may otherwise mutually agree. If Tenant does not validly and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not timely exercise the Expansion Option as set forth in accordance with this Lease and as permitted under Section 6.3 or if the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior parties do not timely enter into such a lease amendment or other written agreement with respect to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion OptionSpace, then the Expansion Option shall automatically become null and void and be of no further force and or effect and the Lessee Landlord shall no longer thereafter have the right to lease the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building Space and the Phase II Building shall continue Expansion Property at any time and from time to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below time to such persons or entities and on Exhibit "J" attached to this Lease and made a part hereofsuch terms as Landlord in its sole discretion may deem appropriate, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.ewithout any further limitation or restriction hereunder., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
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Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option (the "Expansion Option")ongoing option, by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before until the date which is twelve nine (129) months after prior to the estimated Rent Commencement Date (i.e., March 31, 2023) (the “Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the LesseeEnd Date”), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect elect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove lease all or any portion of the Recapture Land from the applicability remaining 18,353 rentable square feet of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving space located on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date floor of the Phase III Commencement Date Building (the “Expansion Area”) on the same terms and conditions as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered initial Premises by the Lessor to the Lessee on that date which is delivering not more than two (2) years and six notices to Landlord (6each, an “Expansion Option Notice”) months at any time following the Phase I Commencement Date of this Lease, but not later than the Expansion Option End Date, then time being of the Term essence. If Tenant elects to lease less than all of the Expansion Area in its first Expansion Option Notice, Tenant shall have the ongoing right to elect all or any portion of remaining Expansion Area until the Expansion Option End Date; provided, however, that if Tenant shall elect to lease less than all of the Expansion Area it may not elect to lease more than 12,353 rentable square feet of the Expansion Area (such that there shall remain at least 6,000 rentable square feet of space on the second (2nd) floor of the Building if Tenant elects to lease less than all of the Expansion Area). If Tenant elects to lease all of the Expansion Area, the Premises Rentable Area (i.e. the aggregate square footage of the Premises and the Expansion Area) shall be 60,933 rentable square feet. Tenant shall specify in its Expansion Option Notice the square footage and approximate location of the portion of the Expansion Area which T▇▇▇▇▇ has elected to lease. If an Expansion Option Notice is for less than all of the entire Expansion Area, Landlord and Tenant shall work together in good faith to mutually agree upon a reasonable configuration and layout of the premises Tenant has elected to lease, plus or minus such additional space as may be reasonably required so that such space and any remaining space on the second (2nd) floor of the Building (i.e., including the Phase I Building, the Phase II Building which in no event shall be less than 6,000 rentable square feet) are both situated and the Phase III Building) would automatically be re-set configured so as to be reasonably marketable and so that the space Tenant has elected to lease is contiguous with the Premises, as may be expanded, and a new ten construction and delivery schedule for such Expansion Area. In no event shall Landlord’s obligation for any penalties related to the Existing Lease, as defined in Section 3.1 below, apply to the delivery of any of the Expansion Space. The parties shall execute an amendment to this Lease within thirty (1030) year Term from days following an Expansion Option Notice, in a commercially reasonable form prepared by Landlord and reasonably acceptable to Tenant, memorializing the Phase III Commencement Date(i.e.expansion of the Premises, ten (10) years from that date which is two (2) years and six (6) months from amending the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 terms of this Lease which vary with the Premises Rentable Area (including but not limited to, the Annual Fixed Rent, Tenant’s Percentage, the Allowance, and the number of Parking Spaces allocated to Tenant), confirming that the lease of such Expansion Area shall be on the same terms and conditions as this Lease, and confirming that all terms, covenants, conditions, and provisions of the Lease remain unmodified with the exception of those items which would (if properly exercised be affected by the Lessee expansion, as expressly set forth in Paragraph 38 of this Lease) commence on the case may be. The Parties hereby agree that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been Annual Fixed Rent for the original Termination Date under this Lease. Furthermore, anything contained in this Lease Expansion Area shall include the Financed Fit-Out Rent only to the contrary notwithstanding, upon extent that Landlord provides the Lessee's proper exercise of its same financing for tenant improvements in the Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date Area which is the day immediately preceding the tenth (10th) year anniversary date basis of the Phase IIIFinanced Fit-Out Rent. Landlord shall not lease any of the Expansion Area to a third party unless Tenant fails to exercise its rights prior to the Expansion Option End Date to lease such Expansion Area. If Landlord enters into a letter of intent to lease, a license or other occupancy agreement for all or any portion of the Expansion Area prior to the Expansion Option End Date, Landlord shall explicitly provide that such letter of intent, license or occupancy agreement is subject to and subordinate to T▇▇▇▇▇’s rights hereunder to lease the Expansion Area.
Appears in 1 contract
Expansion Option. (a) The Lessor Section 39.1 Provided that no Event of Default, or an event which, upon the giving of notice or the passage of time could become and the Lessee hereby acknowledge Event of Default, has occurred and agree thatis continuing under this Lease at such time, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option (right to lease the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") Additional Space shown on Exhibit A at any time prior to the second (2nd) first anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred Date. If Tenant desires to as lease the "Expansion Option Exercise Period")Additional Space, of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof Tenant shall give notice (the "Phase III Building"“Tenant Election Notice”) for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of spaceto Landlord. The Lessor's Improvements with respect If Tenant shall fail to deliver such Tenant Election Notice prior to the Phase III Building (first anniversary of the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Commencement Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor Landlord shall have the right to recapture lease all or any portion of such Additional Space to any third party on any terms Landlord shall elect and remove from this Lease Tenant shall have no further right whatsoever to lease all or any or all of that portion of the Real Property as shown Additional Space.
Section 39.2 If Tenant shall deliver a Tenant Election Notice within the period set forth in Section 39.1, the following shall apply:
(a) the Additional Space shall be added to and deemed a part of the Premises thirty (30) days after delivery of Tenant’s Election Notice (the “Additional Space Commencement Date”) upon the same terms and conditions of this Lease, as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as same may be so designated by modified in accordance with the Lessor, shall be removed from the applicability following provisions of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.Section 39.2;
(b) The annual Minimum the Base Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary Additional Space Commencement Date by an amount equal to the Additional Space Base Rent, which shall be calculated by multiplying the rentable square footage of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to Additional Space by the provisions of Paragraph 5(c) above (i.e., the Minimum then-current annual Base Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.square foot;
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as term of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) Additional Space shall be coterminous with the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of Term under this Lease and shall expire on the Lessor may, thereafter, utilize same date as the Expiration Date (as it may have been extended) hereunder;
(d) the Additional Space shall be delivered in its “as is” condition (i) as a “warm lit shell” with electric service and develop such portion HVAC stubbed to the Additional Space and (ii) sprinkler heads installed and turned up for Life Safety. Landlord shall have no obligation to perform any other work or make any installation in or to the Additional Space. Landlord shall allow Tenant a construction allowance of Ninety ($90.00) Dollars per rentable square foot of the Recapture LandAdditional Space, to be paid against third-▇▇▇▇▇ invoices for work completed in the Additional Space as certified by Tenant’s architect and accompanied by lien waivers and other reasonable documentation as required by Landlord for the completed work;
(ye) Paragraph 23(b) Tenant’s Pro Rata Share shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38increased ratably by the rentable square footage of the Additional Space; and
(af) All other terms and conditions relating to the contrarylease, a successor or assignee use and occupancy of the Lessee may exercise the Extension Options Additional Space shall be as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Brooklyn ImmunoTherapeutics, Inc.)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to So long as Tenant is not in default under the terms and conditions hereinafter set forthof this Lease, the Lessee Tenant shall have the option to lease all, but not less than all, of each of the Twenty First (the "Expansion Option"21st), by providing a written notice to the Lessor Twenty Second (the "Expansion Option Election Notice"22nd), Twenty Third (23rd) at any time prior to the second and Twenty Fourth (2nd24th) anniversary floors of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's ImprovementsOption Space") shall be similar to ). Tenant acknowledges that the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion availability of the Real Property immediately adjacent to Option Space on the westerly side wall 22nd, 23rd and 24th floors of the Building as shown is subject to Landlord's ability to obtain appropriate releases for such Option Space from The Prudential Insurance Company of America. The Tenant's option for leasing the Option Space located on Exhibit "B-4" attached hereto the 24th floor shall expire on March 31, 1993, and made a part hereofTenant shall notify Landlord, in writing, of its exercise of such option for the 24th floor no later than March 31, 1993. The Tenant's option for leasing the Option Space located on the twenty-first floor shall expire on April 30, 1993, and Tenant shall notify Landlord, in writing, of its exercise of such option for the twenty-first floor no later than April 30, 1993. If Tenant elects to exercise its option for Expansion Space on either the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Periodtwenty-first or twenty-fourth floors, then the Lessee's Expansion Option shall automatically cease Landlord and terminate Tenant will immediately proceed to fulfill all requirements and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option conditions as set forth in this Lease and in the Work Letter as permitted under soon as possible following Tenant's exercise of its option. If Tenant desires to exercise its option to lease the terms Option Space consisting of this Leaseeach of the 22nd and/or 23rd floors of the Building, then Tenant shall so notify Landlord, in writing, no later than January 1, 1994, with such lease to be commenced no later than January 1, 1995. The Lessee may exercise annual Rent for the Option Space shall be calculated at Tenant's current escalated Rent for its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be Premises as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, Lease. Landlord shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 provide Tenant with an improvement allowance for the re-setting of a new ten (10) year term Option Space in an amount not to exceed the unamortized improvement allowance for the entire Building Premises initially leased to Tenant (i.e., including such amortization to be calculated by prorating the Phase I Building, $15.00 RSF allowance for Tenant's Work on a monthly basis based on the Phase II Building and the Phase III Building) upon the Lessee's exercise remaining Term of the Expansion Lease). Tenant's obligation to pay Rent with respect to the Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease Space shall commence upon the tenth (10th) year anniversary date Substantial Completion of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eSpace., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
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Expansion Option. Subject to the provisions of this Section 1(c) ---------------- and all Legal Requirements and Private Restrictions, Landlord grants to Tenant the right, option and privilege to expand the Original Premises on not more than three (a3) The Lessor separate occasions by adding up to an additional total of Five Hundred Thirty-Two Thousand Two Hundred Twenty-Four (532,224) square feet as provided by this Section 1(c); provided, however, that no single expansion shall increase the square footage of the Building by less than One Hundred Fifty Thousand (150,000) square feet (in each case, `Expansion Option'). Landlord's duty to grant the Expansion Option, acquire the Expansion Land (as such term is defined below in this Section 1(c)(3)) and construct the Lessee hereby acknowledge and agree thatExpansion Space (as such term is defined in Section 1(c)(4)), all as provided in this Section 1(c), shall be subject to the terms and conditions hereinafter set forth, occurrence of the Lessee following condition precedent: "Landlord shall have acquired, pursuant to one or more of the Real Estate Agreements or pursuant to such other purchase or option agreements as may be reasonably acceptable to Landlord and Tenant (including, without limitation, at a price not greater than that set forth in the "Real Estate Agreements) (in each case, `Expansion Option"Contract'), by providing all or a written notice portion of the land shown on the attached Exhibit `A-2,' which land (or portion thereof) is sufficient to accommodate the construction of the Expansion Premises (as such term is defined in Section 1(c)(4) hereof) pursuant to the Lessor (the "Expansion Option Election Notice") at then being exercised (in each case, `Expansion Land'). The Original Land and any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being Expansion Land are together hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture `Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) For all purposes of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building Expansion Land shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set deemed to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set sufficient to be a new ten (10) year Term from the Lessor's substantial completion of accommodate the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this LeasePremises if, and (z) notwithstanding anything contained only if, such construction can be commenced and completed hereon in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended tocommercially reasonable fashion, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIin accordance with all Legal Requirements and all Private Restrictions.
Appears in 1 contract
Expansion Option. (a) Landlord presently owns the property lying easterly of the Property and commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Expansion Property"). The Lessor Expansion Property is presently operated as a commercial warehouse facility, but it is also Landlord's present intention to redevelop the Expansion Property as a biotechnology facility during calendar year 2005, and the Lessee hereby acknowledge and agree thatLandlord agrees to undertake such redevelopment, subject to the terms and conditions hereinafter set forthforth in this Section 6.3, the Lessee in order to accommodate any proper exercise of Tenant's rights under this Section 6.3. Tenant shall have the a one-time option (the "Expansion Option"), by providing exercisable only in accordance with this Section 6.3, to lease a written minimum amount of at least 100,000 square feet of redeveloped biotechnology space on the Expansion Property; provided, however, that the Expansion Option shall not apply if Tenant is in default under this Lease (beyond any applicable notice and cure periods) on the date the Expansion Option is exercisable. The exact size and location of the space subject to the Lessor Expansion Option within the Expansion Property (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's ImprovementsSpace") shall be similar mutually agreed upon in writing by Landlord and Tenant, subject to the Phase II Lessor's Improvementsminimum size of 100,000 square feet as specified above, but in any event, after Landlord has approved a final design and site plan for the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which redevelopment of the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date"Property. If the Lessee properly exercises its Expansion Option as hereinafter set forthTenant notifies Landlord in writing, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent at least seventy-five (75) days prior to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with date the Expansion Option Election Notice by the final day must be exercised, that Tenant is considering exercise of the Expansion Option Exercise Period(which notice may be given by Tenant in its sole and absolute discretion), then (i) Landlord agrees to adopt and approve a final design and site plan for the Lessee's redevelopment of the Expansion Property at least forty-five (45) days prior to the date the Expansion Option shall automatically cease must be exercised, in order to allow a reasonable time for the parties to reach mutual agreement regarding the size and terminate location of the Expansion Space in a timely manner and (ii) Landlord and Tenant agree to negotiate diligently, reasonably and in good faith to reach such an agreement regarding the Lessee shall have no such size and location of the Expansion Space at least fifteen (15) days prior to the date the Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may must be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Landexercised.
(b) The annual Minimum Rent for Expansion Option shall be exercisable only by written notice from Tenant to Landlord no later than March 1, 2005, and only if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods). Such written notice (the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined"Exercise Notice") shall be Three state that Tenant is exercising the Expansion Option hereunder and 75/100 Dollars shall state specifically the phasing ($3.75if any) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to which Tenant proposes to occupy the provisions of Paragraph 5(c) above (i.e.Expansion Space, the Minimum Rent attributable subject to the Phase III Building shall be increased by two percent (2%) per annum)limitations hereinafter set forth. Upon the Lessee's proper exercise timely giving of the Expansion Optiona timely Exercise Notice by Tenant, the entire Term of this 31 Lease (i) Landlord shall proceed with reasonable diligence and with commercially reasonable efforts to obtain all governmental approvals required for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building Expansion Space, including, but not limited to, any governmental approvals required for the redevelopment of the Expansion Property to accommodate the construction of the Expansion Space (provided that if Landlord is unable, despite the "Phase III Commencement Date"exercise of reasonable diligence and commercially reasonable efforts, to obtain all such required governmental approvals within six (6) andmonths after delivery of Tenant's Exercise Notice, therefore, the First Extension Period, if properly exercised pursuant then upon written notice thereof by either party to the provisions of Paragraph 38 aboveother, Tenant's Exercise Notice shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date be rescinded and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action shall be of no further force or inactioneffect) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect subject to the Phase I Building and Phase II Buildingreceipt of such required governmental approvals, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) Expansion Space shall be deemed omitted from this Lease, leased to Tenant on the following terms (and (z) notwithstanding anything contained in Paragraph 38
(a) to on the contrary, a successor or assignee of the Lessee may exercise the Extension Options as additional terms and provisions set forth in this Lease.
(d) , except for Article 6 hereof and except to the extent inconsistent with the terms specified in this Section 6.3): The Expansion Option Space shall, at Tenant's election as set forth in the Exercise Notice, be leased and occupied either all at once, with a single Rent Commencement Date, or in two separate phases, with the first phase having a minimum size of at least fifty percent (50%) of the total Expansion Space and the second phase constituting the balance of the Expansion Space. The Rent Commencement Date for the Expansion Space (or for the first phase thereof, if applicable) shall be personal determined in the same manner as provided in Section 2.1 hereof (180 days after Landlord's delivery of a Structural Completion Certificate, subject to any adjustments applicable under the Workletter, or on the date Tenant takes occupancy of and commences operation of its business in the applicable space, whichever occurs first), provided that such Rent Commencement Date shall not occur prior to December 1, 2006 unless triggered at an earlier date by Tenant's occupancy of and commencement of operation of its business in the applicable space or unless an earlier date is mutually agreed upon by Landlord and Tenant. If Tenant elects to take down the Expansion Space in two phases as provided above, then the Rent Commencement Date for the second phase of the Expansion Space shall occur on the earlier of December 1, 2007 or the date Tenant actually occupies and commences operation of its business in the second phase of the Expansion Space, unless an earlier date is mutually agreed upon by Landlord and Tenant. Landlord shall perform the equivalent of Landlord's Work (as defined in the Workletter) at its sole cost and expense, for the Expansion Space, subject to such modifications of the scope and definition of Landlord's Work as are consistent with Landlord's design, plans and specifications for the other buildings and facilities to be constructed on the Expansion Property, and Tenant shall be entitled to a Tenant Improvement Allowance of One Hundred Thirty-Five and No/100 Dollars ($135.00) per square foot for the Expansion Space. The minimum monthly rental commencing as of the Rent Commencement Date for the Expansion Space (or for the first phase thereof, if applicable) shall be $4.43 per square foot per month, with annual escalations thereafter on each anniversary of such Rent Commencement Date in an amount equal to three percent (3.0%) of the rental rate in effect immediately prior to the Lessee applicable escalation date. If Tenant elects to take down the Expansion Space in two phases as provided above, then the minimum monthly rental applicable to the second phase as of the Rent Commencement Date for such second phase shall be equal to the minimum monthly rental rate then in effect for the first phase, and the same minimum monthly rental rate for the second phase shall not thereafter at all times be equal to the minimum monthly rental rate in effect for the first phase from time to time, as escalated in accordance with the foregoing provisions. Tenant's Operating Expense obligations with respect to the Expansion Space shall be determined in a manner both similar to and proportional to the Operating Expense obligations of other tenants of the Expansion Property, depending on whether, in Landlord's discretion, the Expansion Property is combined with the Center for Operating Expense purposes or is operated on a stand-alone basis for such purposes, and if operated on a stand-alone basis, whether the Expansion Property is operated on a project-wide basis for Operating Expense purposes or the respective buildings within the Expansion Property are operated in whole or in part on a stand-alone basis for such purposes. Following a timely exercise of the Expansion Option by Tenant, the parties shall promptly (and in all events within ten (10) business days after delivery of Tenant's Exercise Notice) execute a lease amendment or other written agreement reflecting the terms applicable to any successor or assignee the Expansion Space as set forth above and reflecting all other terms and provisions of this Lease not inconsistent with the Lessee (other than a corporate successor or affiliate of terms set forth above, except for Article 6 hereof and except as the Lessee) parties may otherwise mutually agree. If Tenant does not validly and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not timely exercise the Expansion Option as set forth in accordance with this Lease and as permitted under Section 6.3 or if the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior parties do not timely enter into such a lease amendment or other written agreement with respect to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion OptionSpace, then the Expansion Option shall automatically become null and void and be of no further force and or effect and the Lessee Landlord shall no longer thereafter have the right to lease the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building Space and the Phase II Building shall continue Expansion Property at any time and from time to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below time to such persons or entities and on Exhibit "J" attached to this Lease and made a part hereofsuch terms as Landlord in its sole discretion may deem appropriate, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.ewithout any further limitation or restriction hereunder., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Sublease (Prothena Corp PLC)
Expansion Option. (a) The Lessor and Tenant may lease additional space ("First Expansion Option") under the Lessee hereby acknowledge and agree that, subject to the following terms and conditions hereinafter set forthconditions, if (i) Landlord receives notice ("First Expansion Notice") of Tenant's exercise of this First Expansion Option on or before October 1, 1999 (unless the Lessee First Premises Commencement Date is later than August 1, 1999, in which event the October 1 date shall have be extended one day for each day that the option First Premises Commencement Date is later than August 1, 1999), in which Tenant specifies the approximate Rentable Area for the expansion which may be between 12,000 and 36,000 rentable square feet (the "First Expansion OptionSpace"), by providing a written notice to ; (ii) Tenant is occupying the Lessor (Premises and has not assigned the "Expansion Option Election Notice") at Premises or sublet any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent Premises to the westerly side wall of the Building as shown on Exhibit a non-Affiliate; and (iii) Tenant executes and returns a "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the First Expansion Option Election Notice by the final day Amendment" in form and substance satisfactory to Tenant in its reasonable discretion within fifteen (15) days of the Expansion Option Exercise Periodits submission to Tenant. Notwithstanding any other provision hereof, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor Tenant shall have the right to recapture and remove from this Lease any or all extend the period of time by which it must provide Landlord the First Expansion Notice for consecutive one (1) month periods by paying to Landlord the sum of $12,000 prior to the date that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or Tenant otherwise would be obligated to exercise such portion thereof as may be so designated by the Lessor, notice; provided that Tenant shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop entitled to only two (2) such portion of the Recapture Landextensions.
(b) If Tenant is able to and properly exercises its First Expansion Option:
1. Landlord shall deliver for lease to Tenant the First Expansion Space for a term commencing ninety (90) days after the date of the First Expansion Notice or such later date as Tenant may 56 elect in its sole discretion, but not later than January 1, 2000 (subject to the day for day extension described in (a) above in the event that First Premises Commencement Date is later than August 1, 1999 and/or Tenant has exercised its right to extend the date by which it is obligated to provide the First Expansion Notice) (the "First Expansion Space Commencement Date"). The annual Minimum location of the First Expansion Space shall be at Landlord's sole discretion on levels 2, 3 or 4 of the Building but shall be contiguous to the Premises, either horizontally or vertically.
2. The Base Monthly Rent for the Phase III Building First Expansion Space shall be determined in accordance with the schedule of Base Monthly Rent set forth in the Basic Lease Information; the Base Year for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) First Expansion Space shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in 2000; the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" Expiration Date of the Phase III Building (as defined in Paragraph 5(b) Lease will be extended, if necessary, so that the Term of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of spacethe Lease shall expire 60 months after the First Expansion Space Commencement Date; provided, however, such annual Minimum the Security Deposit shall be increased to be an amount equal to the average Monthly Base Rent for the Phase III Building remainder of the Term, after giving effect to the addition of the First Expansion Space; and, Landlord will provide an allowance of $35.00 per usable square foot and construct tenant improvements in such expansion space in accordance with the construction procedures established by and the terms and conditions of the Work Letter.
3. Landlord shall prepare the First Expansion Amendment to reflect changes in Premises, Expiration Date, Monthly Base Rent, Tenant's Share, the number of parking spaces allocated to Tenant, the Security Deposit and other appropriate terms. A copy of the First Expansion Amendment shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date sent to Tenant with in a reasonable time after exercise and continuing on each anniversary date thereafter, pursuant executed by Tenant and returned to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III BuildingLandlord.
(c) If The commencement of payment of Monthly Base Rent and Tenant's Share of Operating Expenses and Taxes for the Phase III Commencement Date has not occurred for any reason First Expansion Space shall commence on or before the date which is twelve (12) months after of Substantial Completion of the First Expansion Option Notification Space and the determination of the Expiration Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, shall be based on the Lessee), date of Substantial Completion of the Lessee may, by written notice to Lessor:First Expansion Space.
(id) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect Upon delivery to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion Tenant of the Recapture Land from the applicability of this Lease and the Lessor mayFirst Expansion Space, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) it shall be deemed omitted from this Leaseconsidered Premises, subject to all terms and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee conditions of the Lessee may exercise the Extension Options as set forth in this Lease.
(de) The Expansion Option shall be personal Notwithstanding anything to the Lessee and contrary contained, herein, the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the First Expansion Option shall automatically become null terminate without notice and void and shall be of no further force and effect and effect, whether or not Tenant has timely exercised such option, if a Default exists at the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise time of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the First Expansion Option must be reconciled within or at the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise time of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.ecommencement., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Office Lease (Ask Jeeves Inc)
Expansion Option. Effective as of the date hereof, Section 2.6 of the Original Lease is deleted in its entirety and Tenant’s only rights to lease additional space in the Building shall be as set forth in this Section 11 and Section 12 below. Except as otherwise provided in this Section 11, and provided that an Event of Default does not then exist and the Named Tenant, an Affiliate (as that term is defined in Section 13.8(a) of the Original Lease) or any entity to whom the Lease is assigned pursuant to the terms of Article 13 of the Original Lease (“Assignee”) is occupying the entire Premises, Tenant shall have the following options (the “Expansion Options”) to lease space in the Building: (i) the option to lease at least fifty percent (50%) of the rentable square footage on the third (3rd) floor of the Building, so long as the configuration of any space on the third (3rd) floor that is not leased (A) is contiguous and located at an end of the third (3rd) floor of the Building, (B) does not create exiting issues, and (C) is a marketable space with a marketable entrance, as determined in Landlord’s reasonable discretion, and (ii) if Tenant leases less than all of the third (3rd) floor of the Building when Tenant exercises the first Expansion Option, then the option to lease the balance of the third (3rd) floor of the Building (each, an “Expansion Option Space”) on the terms set forth in this Section 11.
11.1. The Expansion Options shall be exercised by only the Named Tenant, an Affiliate or an Assignee and only in the following manner: (1) Tenant shall deliver written notice to Landlord during the period from January 1, 2013 through and including March 31, 2014 (the “Expansion Period”), stating that Tenant will lease an Expansion Option Space and identifying the square footage of the Expansion Option Space Tenant desires to lease when Tenant exercises the first Expansion Option (the “Expansion Exercise Notice”); and (2) Landlord shall deliver notice (the “Expansion Delivery Notice”) to Tenant, within ten (10) days after Landlord’s receipt of the Expansion Exercise Notice, stating the date on which Landlord shall deliver possession of such Expansion Option Space to Tenant for construction of tenant improvements therein, which delivery date shall occur not less than thirty (30) days and not more than one hundred twenty (120) days after Landlord’s receipt of the Expansion Exercise Notice.
11.2. If Tenant delivers an Expansion Exercise Notice during the Expansion Period, then the term of Tenant’s lease of the applicable Expansion Option Space shall (A) commence upon Landlord’s delivery of such Expansion Option Space to Tenant for construction of tenant improvements therein (however, Tenant’s obligation to pay Rent with respect to such Expansion Option Space shall commence upon the date (the “Expansion Option Space Rent Commencement Date”) that is the earlier to occur of (1) the date Tenant first conducts business in such Expansion Option Space, or (2) the date that is one hundred fifty (150) days after the date Landlord delivers possession of such Expansion Option Space to Tenant for construction of tenant improvements therein), and (B) be upon all of the same terms and conditions as are applicable to Tenant’s lease of the Premises pursuant to the Lease (including payment of Fixed Rent at the per rentable square foot rates set forth in Section 4 above), except that (i) Tenant’s Proportionate Share and total number of unreserved Parking Spaces shall be revised to reflect the rentable square footage of the initial Premises and such Expansion Option Space, (ii) the seven (7) months of Fixed Rent abatement provided in Section 5 above shall be reduced to the number of months which is equal to (a) The Lessor seven (7) months multiplied by (b) a fraction (the “Fraction”), the numerator of which is the number of months remaining in the Extended Term as of the Expansion Option Space Rent Commencement Date for such Expansion Option Space, and the Lessee hereby acknowledge and agree thatdenominator of which is 84, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice"iii) at any time prior to the second (2nd) anniversary paragraph of the Phase I Commencement Date (such two (2) year period being hereinafter referred Section 5 above shall not apply to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option Space, and thereupon (iv) the Lessor amounts set forth in Section 9 above shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or be reduced by multiplying such portion thereof as may be so designated amounts by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer Fraction (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined Tenant shall construct tenant improvements in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, Expansion Option Space pursuant to the provisions of Paragraph 5(c) above (i.e.Sections 8 and 9 above.
11.3. If Tenant timely delivers the Expansion Exercise Notice, then Landlord and Tenant shall execute an amendment to the Lease, effective as of the date such Expansion Option Space is to be delivered to Tenant, memorializing the terms applicable to Tenant’s lease of such Expansion Option Space pursuant to this Section 11.
11.4. Notwithstanding anything to the contrary contained herein, the Minimum Rent attributable Expansion Options shall terminate if (i) the Lease or Tenant’s right to possession of the Premises is terminated, (ii) in the event of any Transfer (other than to a Related Entity), (iii) at the time of the execution of the amendment adding the applicable Expansion Option Space to the Phase III Building shall be increased by two percent Lease, a monetary or material non-monetary Event of Default then exists, or (2%iv) per annum). Upon Tenant has elected (or has been deemed to have elected) not to lease the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised Available Space pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) Section 12 below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee Named Tenant, an Affiliate or an Assignee, and the same shall may not be applicable to exercised by any successor other assignee, subtenant or assignee other transferee of any portion of the Lessee (other than a corporate successor Named Tenant’s, an Affiliate’s or affiliate of an Assignee’s or any Related Entity’s interest in the Lessee) and the Lessee's successors Lease or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionPremises.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease (Mindspeed Technologies, Inc)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor 38.1 Tenant shall have the right to recapture expand the Premises in accordance with the terms of this Article. Unless waived by Landlord, it shall be a condition precedent to the exercise of each option set forth below that no Event of Default exists on the date Notice of the exercise of the expansion option is given by Tenant and remove from on the effective date on which the applicable space is added to the Premises. Except as set forth in this Lease any or Article, all of that portion the space leased by Tenant under this Article shall be part of the Real Property as shown as Premises and subject to all of the shaded area other provisions of this Lease. All options granted under this Section 38.1 are personal to Tenant and the applicable Related Corporation and may not be exercised by any assignee or subtenant.
38.2 Tenant shall have the following additional expansion options, any one or more of which may be exercised by Tenant:
(a) The entire twelfth (12th) floor of the Building composed of 23,940 rentable square feet marked on Exhibit "A-6" the drawing attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion EXHIBIT P. Tenant must give Notice of the Recapture LandExercise of its option with respect to this space by no later than October 30, 2000 or the option shall expire.
(b) The annual Minimum Rent for entire sixteenth (16th) floor of the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per composed of 22,700 rentable square feet of space contained in marked on the Phase III Building drawing attached hereto as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" EXHIBIT Q. Tenant must give Notice of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent option with respect to this space by no later than October 30, 2000 or the Phase III Buildingoption shall expire.
(c) If The entire fifty-first (51st) floor of the Phase III Commencement Date has not occurred for any reason Building composed of 5,500 rentable square feet marked on or before the date which is twelve (12) months after drawing attached hereto as EXHIBIT R. Tenant must give Notice of the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as exercise of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease its option with respect to this space by no later than September 30, 1999 or the Phase I Building and Phase II Building, in which event (x) the Lessor option shall have the right to recapture and remove all or any expire. A portion of this space is under a lease expiring November 30, 1999. Tenant recognizes that the Recapture Land from current tenant may holdover after the applicability expiring of this Lease its stated term. Any holdover by a tenant shall not negate Tenant's option with respect to such space. Landlord shall use its best efforts to dispossess the holdover tenant, including the enforcement of any holdover terms and commencement and prosecution of a dispossess action and the Lessor may, thereafter, utilize and develop such portion effective date of the Recapture Land, (y) Paragraph 23(b) leasing of the space to Tenant shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee upon Landlord's Substantial Completion of the Lessee may exercise the Extension Options as set forth in this LeaseLandlord's Work.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee entire fifty-second (52nd) floor of the Lessee (other than a corporate successor or affiliate Building composed of 5,500 rentable square feet marked on the drawing attached hereto as EXHIBIT S. Tenant must give Notice of the Lessee) and exercise of its option with respect to this space by no later than July 1, 2006 or the Lessee's successors or assigns (other than a corporate successor or affiliate of option shall expire. In the Lessee) may event Tenant does not timely exercise the Expansion Option as option set forth in Section 38.2(c), the option set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option Section 38.2(d) shall automatically become null and be void and of no further force and effect and the Lessee shall no longer have the Expansion Optioneffect.
(e) Anything contained in A portion of the lobby of the Building approximately as marked on the drawing attached hereto as EXHIBIT T. The exact usable square footage shall be agreed upon by Landlord and Tenant at the time Tenant exercise this Paragraph 39 option. Tenant must give Notice of the exercise of its option with respect to this space by no later than September 30, 1999 or the option shall expire. In regard to this space, Landlord shall create a separate entrance to the contrary notwithstandingPremises and it shall be for the exclusive use of Tenant. Tenant shall be permitted to place on the Building a sign setting forth Tenant's name at said entrance and a flag at said entrance, provided said sign and flag meets the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly requirement set forth in Article 14, and Landlord shall not unreasonably withhold its consent to renaming the applicable entrance. Nothing in this Lease andSection shall preclude Tenant's use of the entrance on ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as an entrance to Tenant's space or an address for the Building. In the event Tenant exercises this option, except Landlord shall provide at least one (1) security guard in this area on a 24 hour, 7 day a week basis who shall provide security at a level consistent with security provided to the remainder of the Building. If Tenant desires a higher level of security or more than one (1) security guard in the lobby, Landlord shall provide same. Any additional costs in excess of one security guard required under this Section shall be paid by Tenant, as Additional Rent, within twenty (20) days of presentation of an invoice for same. To the extent the lobby area, entrance (including the doors contained therein), elevators and other areas or equipment associated therewith are used exclusively by Tenant or are dedicated for Tenant's exclusive use, Tenant shall be responsible for all costs associated with such areas or equipment (to the extent such costs would otherwise be included in Operating Expenses or paid directly by Tenant). Tenant shall pay such costs as Additional Rent within twenty (20) days of receipt of an invoice therefor. In the event Tenant exercises the option set forth herein, Landlord, at its cost, shall promptly after Tenant exercises tHIS option bring the Beaver Street entrance and lobby up to the finish and standards of the 20 Exchange lobby (subject to any approvals required by the New York City Landmarks Commission and Landlord shall not be required to provide ADA access from Beaver Street). At the request of Tenant, Landlord shall use commercially reasonable efforts to pursue the change of the Beaver Street to another name reasonably acceptable to Landlord and Tenant.
38.3 Time is of the essence with respect to each of Tenant's Notice deadlines set forth in Section 38.2.
38.4 In the event that Tenant properly exercises an expansion option as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I BuildingSection 38.2, the Phase II Building and the Phase III Building) upon the Lessee's exercise applicable area will be leased to Tenant effective as of the Expansion Option must be reconciled day that Landlord Substantially Completes Landlord's Work within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor applicable area other than with respect to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly option set forth in Paragraph 38 Section 38.1(d). In such space, Landlord shall deliver such space fully demolished. Upon delivery of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I such space to Tenant, Tenant's Proportionate Share shall be adjusted accordingly. The Base Rent Commencement Date for any expansion space shall be the three hundred sixty-sixth (366th) day after the Beneficial Occupancy Date. The Base Rent for any expansion space shall be the then effective Base Rent and shall be adjusted as opposed set forth in the Fundamental Lease Provisions.
(a) Landlord shall complete Landlord's Work within the expansion space.
(b) Landlord shall reimburse Tenant up to commencing on what would have otherwise been a maximum of Forty Two and 50/100 Dollars ($42.50) per rentable square foot in the original Termination Date application expansion area (the "EXPANSION SPACE TENANT IMPROVEMENT ALLOWANCE") to be applied to the same costs and in the same manner as the Tenant Improvement Allowance. Tenant shall comply with the provisions of Article 7 with respect to all work to be completed within the applicable expansion area. The Expansion Space Tenant Improvement shall be advanced to Tenant in accordance with the provisions of Section 7.6.
38.6 Any failure by Tenant to exercise any option under this Lease. Furthermore, anything contained in this Lease to Article 38 shall not adversely affect or diminish the contrary notwithstanding, upon the Lessee's proper exercise rights of its Expansion Option as hereinabove set forth, the Termination Date Tenant under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date Article 43 of the Phase IIILease.
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Sources: Lease Agreement (Agency Com LTD)
Expansion Option. A. Provided that at the time of such exercise (ai) The Lessor there then exists no Default of LESSEE beyond applicable notice and the Lessee hereby acknowledge cure periods, and agree that(ii) this Lease is then in full force and effect, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor LESSEE shall have the right to recapture and remove from this Lease any or all of that portion of lease between 10,000 to 20,000 additional contiguous rentable square feet in the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof Building (the "Recapture LandExpansion Space")) by delivering written notice to LESSOR of LESSEE'S intent to lease the Expansion Space on or prior to December 1, whereupon 2004. Within ten (10) Business Days following receipt of such notice, LESSOR shall notify LESSEE of the Recapture Landexact size and location of the Expansion Space, or such portion thereof as may be so designated by the Lessor, which size and location shall be removed from the applicability of this Lease determined by LESSOR in its sole and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum absolute discretion. Basic Rent attributable to the Phase III Building Expansion Space shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise payable commencing as of the Expansion Option, the entire Term earlier to occur of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as the date that LESSEE occupies the Expansion Space for the conduct of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
its business or (ii) continue this Lease with respect March 16, 2005. The failure of LESSEE to notify LESSOR of LESSEE'S election to lease the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options Expansion Space as set forth in this LeaseSection shall be deemed to be an election by LESSEE not to lease Expansion Space.
(d) The B. If LESSEE elects to lease the Expansion Option Space pursuant to this Section, the Expansion Space shall be personal to the Lessee and leased upon the same shall not be terms and conditions applicable to any successor or assignee Spaces A and B as contained in this Lease, except that: the term of such Expansion Space shall, at LESSEE's option, expire either on the fifth (5th) anniversary of the Lessee (other than a corporate successor or affiliate commencement date of LESSEE's lease of the Lessee) and the Lessee's successors Expansion Space or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely Term of Spaces A and properly exercise its Expansion Option, then the Expansion Option shall automatically become null B; and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, that LESSOR shall not be affected by obligated to perform any work or improvements to the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and Space or to provide any allowance or other financial contribution other than, in the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting event of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 term, $37.00 per rentable square foot of Expansion Space, and in the event of a term in excess of seven (7) years, $40.00 per rentable square foot of Expansion Space. Upon LESSEE's election to lease the Expansion Space, LESSEE shall, within twenty (20) Business Days thereafter, execute an amendment to this Lease shall commence upon on a form provided by LESSOR adding the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed Expansion Space to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and otherwise reflecting the second (2nd) five (5) year Extension Period under Paragraph 38 terms of this Lease Section. Should LESSEE fail to execute such amendment within such twenty (20) day period, such failure shall, thereforeat LESSOR's election, commence upon constitute a waiver of LESSEE's right to lease the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded Expansion Space pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eSection., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
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Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee Sublessee shall have the right and option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as which comprises the shaded area on Exhibit "B-4" attached hereto Subleased Premises and made a part hereof (the "Phase III Building") is subject to this Sublease for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) up to 10,000 rentable square feet of space. The Lessor's Improvements with respect foregoing expansion option shall be exercisable at any time during the Original Term of the Sublease only by Sublessee and only by giving Sublessor written notice thereof, which notice shall specify the amount of space (up to the Phase III Building maximum of 10,000 rentable square feet) (the "Phase III Lessor's ImprovementsExpansion Space") and the proposed commencement date for the expansion option (which notice shall be similar given at least six (6) months in advance). Within thirty (30) days after the receipt of Sublessee's notice of exercise of the expansion option, Sublessor shall designate the location of the Expansion Space within the Building. Sublessor shall use its reasonable best efforts to (i) provide contiguous space located on a single floor for the Phase II LessorExpansion Space, and (ii) make the Expansion Space available for Sublessee's Improvementsoccupancy on the commencement date proposed by the Sublessee in its notice of exercise of the expansion option, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have event no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first later than twelve (12) months following receipt of such notice. Any costs incurred by Sublessor for relocation of tenants and/or reconfiguration of space in creating the Phase III Commencement Date (hereinafter defined) Expansion Space shall be Three paid by Sublessee upon demand from Sublessor. As a condition precedent to the occupancy of the Expansion Space by the Sublessee, Sublessor and 75/100 Dollars ($3.75) Sublessee shall execute a written amendment of this Sublease to effect the incorporation of the Expansion Space into the Subleased Premises, which amendment shall contain the terms and conditions of such occupancy as agreed to by the parties, including, without limitation, the term of the lease of the Expansion Space. In the event Sublessee shall commence occupancy of the Expansion Space under this Section 21.3 on or before May 1, 2004 the Base Rent per square feet foot rental rate shall be the same Base Rent per square foot charge paid by the Sublessee under Article 4.1 of space contained this Sublease plus any other additional charges payable by the Sublessee under this Lease, and the other terms and conditions of the amendment to the Sublease. In the event Sublessee shall commence occupancy of the Expansion Space under this Section 21.3 after May 1, 2004, the Base Rent per square foot shall be negotiated by the parties hereto, and shall be commercial reasonable. In no event, however, shall the Base Rent for the Expansion Space be less than the Base Rent per square foot charge paid by the Sublessee under Article 4.1 of this Sublease.
4. A list of the final plans and specifications for the Base Building Work, as approved by the parties in the Phase III Building Confirmation, is attached hereto as measured Exhibit 2A, which list is subject to the deletions and modifications listed on Exhibit 9 hereto. A list of the existing plans and specifications for the Leasehold Improvement Work, as previously approved by the Lessor's architect or engineer (and verified by the Lessee) from structural line parties, is attached hereto as Exhibit 2, which list shall be subject to "structural line" modification as provided in Section 5 below. Sublessor shall use diligent efforts to complete construction of the Phase III Base Building Work and the Leasehold Improvement Work on or before April 25, 2002. In the event Sublessor fails to achieve "Substantial Completion" (as defined in Paragraph 5(bSection 2.5 of the Sublease) of the Base Building Work and the Leasehold Improvement Work on or before July 1, 2002, then Sublessee shall have the right, exercisable by notice to Sublessor given at any time while such failure persists, to terminate this Lease), but not exceeding ninety-nine thousand (99,000) square feet of spaceSublease; provided, however, such annual Minimum Rent for if Sublessor fails to achieve Substantial Completion because of delays caused by the Phase III Building Sublessee, its agents, or employees ("Sublessee Delays"), Substantial Completion shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date have occurred as of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant date that Sublessor could reasonably have been expected to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) belowachieve Substantial Completion absent any Sublessee Delays. The Minimum Rent attributable to the Phase III Building construction deadline of July 1, 2002 shall be "netextended one (1) day, netup to a maximum of one hundred eighty (180) days, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment each day of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays delay caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee occurrence of an event of "Force Majeure" as defined in Section 2.4 of the Lessee may exercise the Extension Options as set forth in this LeaseSublease, or (b) Sublessee Delays.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject Landlord has disclosed to the terms and conditions hereinafter set forth, the Lessee shall have the option Tenant that Landlord is currently negotiating a lease with Amherst Securities (the "Expansion OptionAmherst Securities Lease")) for approximately 4,000 square feet in the 2nd Option Space, by providing a written notice which space is adjacent to the Lessor Premises and is reflected on Exhibit "C" attached hereto (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise PeriodAmherst Premises"), of requiring . Landlord acknowledges and agrees that the Lessor Amherst Securities Lease will be subject to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The LessorTenant's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its existing Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Forth in Section 2.05 and Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural lineG" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant . In Addition to the provisions of Paragraph 5(c) above (i.e., Tenant's rights under the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Current Expansion Option as set forth in this Lease and as permitted under the terms Lease, Landlord hereby grants to Tenant, for a period of sixty (60) days from the date of this Lease. The Lessee may Second Amendment, the limited right to exercise its Expansion Option only by serving on the Lessor the LesseeTenant's Expansion Option Election Notice prior to for a maximum of 6,000 Rentable Square Feet in the expiration of 2nd Option Space and/or the Expansion 3rd Option Exercise PeriodSpace (excluding the Amherst Premises). In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be Except as expressly set forth in this Lease andSection 6 of this Second Amendment, except all of the terms and conditions of Exhibit "G" shall be applicable to Tenant's right to exercises the Expansion Option on such portions of the 2nd Option Space and/or the 3rd Option Space. Further, Landlord agrees not to enter into any additional leases related to the 2nd Option Space or the 3rd Option Space (other than the Amherst Securities Lease) during this sixty (60) day period. If Tenant elects not to exercise its right to exercise the Expansion Option during such sixty (60) day period, Tenant's limited right to exercise the Expansion Option early as set forth in Subparagraph (f) below and on Exhibit "J" attached this Second Amendment shall terminate, but Tenant shall continue to this Lease and made a part hereof, shall not be affected by the Lessee's have all rights to exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context in accordance with Exhibit "G" of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, Lease at the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly times set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIItherein.
Appears in 1 contract
Sources: Two Bridgepoint Lease Agreement (Brigham Exploration Co)
Expansion Option. Provided that Tenant is not in default (abeyond applicable notice or cure period(s)) The Lessor and of its obligations under this Lease at the Lessee hereby acknowledge and agree thattime Tenant makes such election or at the time that the Expansion Space (as defined below) is added to this Lease, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option one-time right to expand the Premises (the "“Expansion Option"), ”) to include one full contiguous floor of the Building consisting of approximately 54,090 rentable square feet (the “Expansion Space”) effective during the first Lease Year by providing a prior written notice to the Lessor (the "“Expansion Option Election Notice"”) to Landlord at any time least six (6) months prior to the second date (2ndthe “Expansion Delivery Date”) anniversary within the first Lease Year that Tenant seeks to add the Expansion Space to the Premises. Within 15 days following the delivery of the Phase I Commencement Expansion Notice, Landlord shall notify EAST\174041517.9 Tenant of the exact location of the Expansion Space. The expansion rights set forth above are personal to Tenant and any Successor Entity and shall automatically terminate and become null, void and of no force and effect upon the earlier to occur of (i) the expiration or termination of this Lease by Landlord or pursuant to Law; (ii) the termination or surrender of Tenant’s right of possession to the Premises; (iii) the assignment of this Lease by Tenant to an entity other than a Successor Entity; and (iv) the sublease by Tenant of a portion of the Premises equal to or exceeding fifty percent (50%) of one full floor of the Premises, which sublease(s) have expiration dates within six (6) months of the Expiration Date of this Lease; or (such two (2vi) year period being hereinafter referred the failure of Tenant to as timely and/or properly exercise the "option set forth above. If Tenant timely exercises the Expansion Option Exercise Period")under this Section, Landlord shall deliver the Expansion Space to Tenant on the Expansion Delivery Date with the Landlord’s Work (as defined in Exhibit 3.2) on such floor Substantially Complete; and the Expansion Space shall be leased by Tenant on all of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet terms of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements this Lease in effect with respect to the Phase III Building remainder of the Premises (including, without limitation, at the "Phase III Lessor's Improvements"same Fixed Rent rate per square foot and subject to the provisions applicable to Finish Work set forth in Exhibit 3.2 including the Landlord’s Contribution, as the same may be increased by Tenant with respect to the Expansion Space pursuant to Section 11(e) of Exhibit 3.2), except that the provisions of Section 14 of Exhibit 3.2 shall not apply, the Security Deposit shall be similar increased proportionately on a per square foot basis, Tenant’s parking allocations shall be proportionately increased as provided in Section 11.8, above, and Tenant’s Pro Rata Percentage shall be increased to reflect the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day addition of the Expansion Option Exercise PeriodSpace to the Premises. At the request of either party, then Landlord and Tenant shall promptly execute and deliver an agreement confirming such expansion of the Lessee's Expansion Option shall automatically cease and terminate Premises and the Lessee shall have no estimated date the Premises are to be expanded pursuant to this paragraph with a provision for establishing the effective date of such Expansion Option and thereupon the Lessor shall have the right expansion based on actual delivery. Landlord’s failure to recapture and remove from this Lease deliver, or delay in delivering, all or any or all of that portion part of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land")Expansion Space, whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessorfor any reason, shall be removed from not give rise to any liability of Landlord, shall not alter Tenant’s obligation to accept such space when delivered, shall not constitute a default of Landlord, and shall not affect the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) validity of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first that (1stA) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant if Landlord fails to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise deliver possession of the Expansion Option, Space in the entire Term of condition required by this 31 Lease for the entire Building Section 36.1 within two hundred forty (i.e., the Phase I Building, the Phase II Building and the Phase III Building240) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months days after the Expansion Option Notification Delivery Date (other than as it may be extended for delays caused by Tenant Delay or Construction Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused byMajeure, or attributable toTenant in its sole discretion, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right upon written notice to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor mayLandlord, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise withdraw its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context and upon such withdrawal, all obligations of the Lessee's parties under this Section 36.1 shall cease, and (B) if Landlord fails to deliver possession of the Expansion Space in the condition required by this Section 36.1 within 30 days following the Expansion Delivery Date as it may be extended for Tenant Delay or Construction Force Majeure and Tenant does not elect to withdraw its Expansion Option, Landlord shall provide Tenant with (I) one (1) day of Fixed Rent abatement for Expansion Space for the 31st through 90th day of such late delivery, and (II) two (2) Extension Options days of five (5) years Fixed Rent abatement for the Expansion Space for each under Paragraph 38 of day thereafter that Landlord fails to deliver the Expansion Space as required by this LeaseSection 36.1. Accordingly, If the Lessor and prior tenant holds over in the Lessee hereby acknowledge and agree that, upon Expansion Space beyond the Lessee's exercise term of its Expansion Option under this Paragraph 39lease, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease Landlord shall, thereforeno later than 30 days following the Expansion Delivery Date, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Leasediligently pursue eviction proceedings against such tenant. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIEAST\174041517.9
Appears in 1 contract
Sources: Lease Agreement (Arvinas, Inc.)
Expansion Option. (a) The Lessor and Tenant shall have the Lessee hereby acknowledge and agree thatright, subject to and upon the terms and conditions hereinafter set forthof this Section 2.3, to lease that portion of the Lessee shall have the option Building comprised of approximately 9,000 rentable square feet and shown on Exhibit “A-1” attached hereto (the "Expansion Option"“Machine Shop Area”), by providing a currently leased to Tecnau. Tenant may deliver written notice to the Lessor (the "Expansion Option Election Notice") Landlord at any time between March 1, 2020 and December 31, 2021 exercising such option to lease the Machine Shop Area (the “Notice Period”), and in such case Landlord shall deliver the Machine Shop Area to Tenant, in vacant, broom clean condition, with the HVAC and other systems serving the Machine Shop Area in good working order, within one hundred and twenty (120) days after the date of such written notice to Landlord (the “Notice Period”), but in no event will such delivery occur prior to March 1, 2020. If Tenant timely delivers such notice, then the second (2nd) anniversary Expansion Premises shall be added to the Leased Premises and they shall be subject to all terms, conditions and covenants of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as Lease; and minimum rent, and Tenant’s Pro Rata share shall be proportionately increased and adjusted in accordance with the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing increased square footage. Landlord will supply an additional ninetyTenant Improvement allowance of $15 per square foot, pro-nine thousand rated for the then remaining lease term. Within fifteen (99,00015) square feet days of space as shown as such notice from Tenant, Landlord and Tenant shall execute and amendment to this Lease to memorialize such expansion. Provided that the shaded area on Exhibit "B-4" attached hereto Tecnau completes such relocation within the Notice Period and made leaves the Machine Shop Area in broom-clean condition, Tenant will reimburse Landlord for Tecnau’s paid and documented relocation expenses up to $25,000. If Landlord has not delivered the Machine Shop Area in the condition required by this Section 2.3 within the Notice Period, and if such failure continues for an additional 15 days thereafter, then Tenant shall be entitled to a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements credit against Minimum Rent due only with respect to the Phase III Building Machine Shop Area on a day-by-day basis for each one (1) day thereafter until the "Phase III Lessor's Improvements") Landlord delivers the Machine Shop Area to Tenant. If Tenant shall fail to timely give such notice on or before December 31, 2021, Tenant shall be similar deemed to the Phase II Lessor's Improvementshave waived such right, but in any event, the Phase III Lessor's Improvements and Landlord shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter thereafter be referred free to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with lease the Expansion Option Election Notice by the final day of the Expansion Option Exercise PeriodPremises to such parties and on such terms as Landlord shall determine in its sole discretion, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; providedsubject, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building Section 2.4 below. It shall be increased by two percent (2%) per annum). Upon a condition to Tenant’s right to exercise the Lessee's proper exercise of option to lease the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon Premises that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
Tenant (i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified is not in Lessee's default (beyond applicable notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(iicure periods) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration , (ii) has not subleased twenty-five percent (25%) of the Expansion Option Exercise Period. In Leased Premises, and (iii) has not assigned the event the Lessee does not timely and properly exercise its Expansion OptionLease, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth either case except in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made connection with a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date transaction permitted without Landlord’s consent under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease (One)
Expansion Option. Premises: Approximately 3,500 sq. ft. (aexact number to be determined by LL) The Lessor of contiguous space on 5th floor, at location to be determined by LL. Exercise Date: Notice from Tenant to LL by 3/l/95 -------------------------------------------------------------------------------- OPTIONS & ENCUMBRANCES -------------------------------------------------------------------------------- - LL shall notify Tenant by 4/l/95 setting forth (i) location and square footage of expansion space; (ii) Base Rent; and (iii) effective date on which LL shall deliver possession (which date shall be between 9/l/95 9/l/96) - Base Rent: same per sq. ft. amount as for original premises, including increases. - Tenant Improvements: $7.50/sq. ft. - Pro-rata share: shall increase accordingly Second Expansion Option: ------------------------ - Premises: Approximately 3,500 sq. ft. (exact number to be determined by LL) of contiguous space on5th floor, at location to be determined by LL. In any event, such space shall include the Lessee hereby acknowledge area located between the midrise elevator lobby on the 5th floor containing approximately 507 sq. ft. Exercise Date: Notice from Tenant to LL by 3/l/97 - Availability of Second Expansion Option is not conditioned on exercise by Tenant of First Expansion Option. - LL shall notify Tenant by 4/l/97 setting forth (i) location and agree thatsquare footage of expansion space; (ii) Base Rent; and (iii) effective date on which LL shall deliver possession (which date shall be between 9/l/97 9/l/98) - Base Rent: same per sq. fL amount as for original premises, subject to the terms and conditions hereinafter set forth, the Lessee including increases. - Tenant Improvements: $5.00/sq. ft. - Pro-rata share: shall increase accordingly LL shall have right to increase/decrease the option (rentable area of either of the "Expansion Option")Premises by not more than 20%, by providing a written with notice to the Lessor (the "Expansion Option Election Notice") at any time Tenant no later than 6 months prior to the second (2nd) anniversary of the Phase I Commencement Effective Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building such expansion. Forensic Technologies International, Inc. (the "Phase III Lessor's Improvements"Suite 600) shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b9/l/93 - 8/31/98) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III------------------------------------------------------------------------
Appears in 1 contract
Sources: Assignment of Leases and Rents (Overseas Partners LTD)
Expansion Option. (a) Landlord presently owns the property lying easterly of the Property and commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Expansion Property"). The Lessor Expansion Property is presently operated as a commercial warehouse facility, but it is also Landlord's present intention to redevelop the Expansion Property as a biotechnology facility during calendar year 2005, and the Lessee hereby acknowledge and agree thatLandlord agrees to undertake such redevelopment, subject to the terms and conditions hereinafter set forthforth in this Section 6.3, the Lessee in order to accommodate any proper exercise of Tenant's rights under this Section 6.3. Tenant shall have the a one-time option (the "Expansion Option"), by providing exercisable only in accordance with this Section 6.3, to lease a written minimum amount of at least 100,000 square feet of redeveloped biotechnology space on the Expansion Property; provided, however, that the Expansion Option shall not apply if Tenant is in default under this Lease (beyond any applicable notice and cure periods) on the date the Expansion Option is exercisable. The exact size and location of the space subject to the Lessor Expansion Option within the Expansion Property (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's ImprovementsSpace") shall be similar mutually agreed upon in writing by Landlord and Tenant, subject to the Phase II Lessor's Improvementsminimum size of 100,000 square feet as specified above, but in any event, after Landlord has approved a final design and site plan for the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which redevelopment of the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date"Property. If the Lessee properly exercises its Expansion Option as hereinafter set forthTenant notifies Landlord in writing, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent at least seventy-five (75) days prior to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with date the Expansion Option Election Notice by the final day must be exercised, that Tenant is considering exercise of the Expansion Option Exercise Period(which notice may be given by Tenant in its sole and absolute discretion), then (i) Landlord agrees to adopt and approve a final design and site plan for the Lessee's redevelopment of the Expansion Property at least forty-five (45) days prior to the date the Expansion Option shall automatically cease must be exercised, in order to allow a reasonable time for the parties to reach mutual agreement regarding the size and terminate location of the Expansion Space in a timely manner and (ii) Landlord and Tenant agree to negotiate diligently, reasonably and in good faith to reach such an agreement regarding the Lessee shall have no such size and location of the Expansion Space at least fifteen (15) days prior to the date the Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may must be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Landexercised.
(b) The annual Minimum Rent for Expansion Option shall be exercisable only by written notice from Tenant to Landlord no later than March 1, 2005, and only if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods). Such written notice (the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined"Exercise Notice") shall be Three state that Tenant is exercising the Expansion Option hereunder and 75/100 Dollars shall state specifically the phasing ($3.75if any) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to which Tenant proposes to occupy the provisions of Paragraph 5(c) above (i.e.Expansion Space, the Minimum Rent attributable subject to the Phase III Building shall be increased by two percent (2%) per annum)limitations hereinafter set forth. Upon the Lessee's proper exercise timely giving of the Expansion Optiona timely Exercise Notice by Tenant, the entire Term of this 31 Lease (i) Landlord shall proceed with reasonable diligence and with commercially reasonable efforts to obtain all governmental approvals required for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") andExpansion Space, thereforeincluding, the First Extension Periodbut not limited to, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible any governmental approvals required for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration redevelopment of the Expansion Option Exercise Period. In Property to accommodate the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise construction of the Expansion Option must be reconciled within Space (provided that if Landlord is unable, despite the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39reasonable diligence and commercially reasonable efforts, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and obtain all such required governmental approvals within six (6) months after delivery of Tenant's Exercise Notice, then upon written notice thereof by either party to the Phase I other, Tenant's Exercise Notice shall be deemed to be rescinded and the Expansion Option shall be of no further force or effect) and (ii) subject to the receipt of such required governmental approvals, the Expansion Space shall be leased to Tenant on the following terms (and on the additional terms and provisions set forth in this Lease, except for Article 6 hereof and except to the extent inconsistent with the terms specified in this Section 6.3): The Expansion Space shall, at Tenant's election as set forth in the Exercise Notice, be leased and occupied either all at once, with a single Rent Commencement Date under this Lease Date, or in two separate phases, with the first phase having a minimum size of at least fifty percent (50%) of the total Expansion Space and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon phase constituting the fifteenth (15th) year anniversary date balance of the Phase III Expansion Space. The Rent Commencement Date for the Expansion Space (or for the first phase thereof, if applicable) shall be determined in the same manner as opposed provided in Section 2.1 hereof (180 days after Landlord's delivery of a Structural Completion Certificate, subject to any adjustments applicable under the Workletter, or on the date Tenant takes occupancy of and commences operation of its business in the applicable space, whichever occurs first), provided that date which is fifteen (15) years and six (6) months after the Phase I such Rent Commencement Date under this Lease. For purposes of illustration onlyshall not occur prior to December 1, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered 2006 unless triggered at an earlier date by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIITenant's
Appears in 1 contract
Sources: Build to Suit Lease (Tularik Inc)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree thatLandlord, subject to the terms and conditions hereinafter set forthor an affiliate, the Lessee shall have the option construct a building containing a minimum of 186,000 rentable square feet (the "Expansion Option"), by providing a written notice to “Additional Building”) identified as Building #2 on the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately parcel adjacent to the westerly side wall of the Building as shown Land on Exhibit "B-4" A attached hereto and made a part hereof. If Landlord will use its commercially reasonable efforts to attempt to construct the Lessee fails to provide the Lessor Additional Building simultaneously with the construction of the Leased Premises; provided, that the failure to construct the Additional Building simultaneously with the Building shall not constitute a default hereunder. The exterior, façade and parking of the Additional Building will be consistent with those included at the Leased Premises. Provided no Tenant Default then exists, and provided no event which, with the giving of notice or the passage of time, or both, would constitute a Tenant Default has occurred and is continuing, Tenant shall have the one-time right to expand the Leased Premises to include up to 130,000 rentable square feet, but not less than 65,000 rentable square feet of space in the Additional Building (the “Expansion Option”) effective upon the first day of the eleventh (11th) full year following the Rent Commencement Date (anticipated to be January 1, 2026) (the “Expansion Effective Date”), by providing Landlord with at least eighteen (18) months’ (anticipated to be July 1, 2024) prior written notice of the same (the “Expansion Notice”); provided, Tenant’s right to expand the Leased Premises as set forth in this Section 36.1 shall be null and void upon Tenant’s exercise of the Termination Option Election set forth in Section 35.1 above. Additionally, Tenant’s failure to give such Expansion Notice by the final day date set forth herein shall constitute a waiver by Tenant of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the any right to recapture and remove from this Lease any or all of that portion of expand the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture LandLeased Premises.
(b) The annual Minimum Rent If Tenant delivers an Expansion Notice in accordance with the terms set forth in subsection (a) above, Tenant and Landlord shall negotiate in good faith to determine and mutually agree upon the Fair Market Rental Value for the Phase III Building space in the Additional Building. If Landlord and Tenant agree upon the Fair Market Rental Value for the first twelve space in the Additional Building, Landlord and Tenant shall execute an amendment to this Lease expanding the Leased Premises and evidencing the Fair Market Rental Value of the space in the Additional Building. If Landlord and Tenant are unable to agree upon the Fair Market Rental Value for the space in the Additional Building, on or before fifteen (1215) months following prior to the Phase III Commencement Expansion Effective Date (hereinafter defined) the “Expansion Negotiation Period”), then Landlord and Tenant shall be Three and 75/100 Dollars ($3.75) per square feet each simultaneously present to the other party their final determinations of the Fair Market Rental Value for the space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Additional Building (as defined in Paragraph 5(bthe “Expansion Final Offers”) of this Lease), but not exceeding ninety-nine thousand within five (99,0005) square feet of space; provided, however, such annual Minimum Rent for days after the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise last day of the Expansion Option, Negotiation Period. If the entire Term of this 31 Lease Fair Market Rental Value for the entire space in the Additional Building (i.e., as determined by the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion lower of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five proposed Expansion Final Offers is not more than ten percent (510%) years each under Paragraph 38 of this Lease. Accordingly, below the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39higher, then the first five (5) year Extension Period under Paragraph 38 of this Lease Fair Market Rental Value shall commence upon be determined by averaging the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following Expansion Final Offers. If the Phase I Commencement Date, then difference between the Term for lower of the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six proposed Expansion Final Offers is more than ten percent (610%) months from below the Phase I Commencement Date) andhigher, therefore, then the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised Fair Market Rental Rate for the space in the Additional Building shall be determined by Baseball Arbitration in accordance with the Lessee as expressly procedure set forth in Paragraph 38 of this LeaseSection 34.1(g) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIherein.
Appears in 1 contract
Sources: Lease Agreement (Ansys Inc)
Expansion Option. (a) The Lessor From and after the Lessee hereby acknowledge and agree thatdate hereof through June 1, subject to the terms and conditions hereinafter set forth2023, the Lessee Tenant shall have the option (the "Expansion Option")) to lease all (and not a portion) of the space in the adjacent building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Drive, by providing a written notice to the Lessor Santa Clara, California consisting of approximately 35,000 rentable square feet (the "Expansion Option Election Space") for the period commencing February 1, 2024 (the “Expansion Delivery Date”) and ending on the Extension Term Expiration Date (as the same may be extended if Tenant exercises one or more Options), subject to the terms of this Section 5, by providing Landlord written notice (the "Expansion Notice") at any time prior to the second (2nd) anniversary from Tenant of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), exercise of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forthprior to June 1, then 2023, if:
(i) No Event of Default exists at the Lessor shall construct the Phase III Building upon time that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with Landlord receives the Expansion Option Election Notice Notice; and
(ii) the Lease has not been assigned by Tenant (other than pursuant to a Permitted Transfer) at the final day time Landlord receives the Expansion Notice; and
(iii) the existing tenant of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the Space does not exercise any extension right to recapture and remove from this Lease any or all of that portion existing as of the Real Property as shown as date hereof to occupy such space beyond the shaded area on Exhibit "A-6" attached hereto and made a part hereof Expansion Delivery Date (the "Recapture Land"“Existing Extension Option”), whereupon ; provided that (A) Landlord shall not agree to amend the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion exercise conditions of the Recapture LandExisting Extension Option, and (B) Landlord shall notify Tenant whether such Existing Extension Option has been exercised by no later than May 8, 2023.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Base Rent attributable to the Phase III Building Expansion Space shall be increased by two percent payable in monthly installments in accordance with the terms and conditions of the Lease. The Base Rent rate per rentable square foot for the Expansion Space shall be as follows: Notwithstanding the foregoing, during the Expansion Abatement Period (2%) per annumas defined below), the Base Rent for the Expansion Space shall be abated (the “Expansion Abated Base Rent”). Upon If Landlord terminates the Lessee's proper exercise Leases as a result of a Default by Tenant beyond applicable notice and cure periods, then, without limiting any other rights and remedies of Landlord, (1) any remaining portion of the Expansion Option, Abatement Period as of the entire Term date of this 31 such Lease for termination shall automatically be extinguished and (2) the entire Building then unamortized Expansion Abated Base Rent to the date of such termination (i.e., amortized over the Phase I Building, initial 95 months of the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the initial Lease Term for the entire Building (i.e.Expansion Space), including shall immediately become due and payable. For the Phase I Buildingpurposes of this Lease, the Phase II Building and the Phase III Building) “Expansion Abatement Period” shall automatically be re-set to be a new ten period equal to one hundred and fifty-two (10152) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Buildingdays.
(c) If the Phase III Commencement Date has not occurred Tenant shall pay Additional Rent (i.e. Tenant's Proportionate Share of Project Operating Costs) for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, Space in accordance with the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion terms of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to In the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise event Tenant leases the Expansion Option as set forth in this Lease and as permitted under Space pursuant to the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on Option, Tenant shall receive an Allowance for the Lessor Expansion Space in the Lessee's Expansion Option Election Notice prior amount equal to the expiration $37.50 per rentable square foot of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionSpace.
(e) Anything contained in this Paragraph 39 The Expansion Space shall be considered a part of the Premises, subject to all the contrary notwithstandingterms and conditions of the Lease, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly except that no allowances, credits, abatements or other concessions set forth in this the Lease andfor the Premises shall apply to the Expansion Space, except as set forth specifically provided otherwise in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32Option provision.
(f) The Lessor If Tenant exercises its Expansion Option, Landlord and Tenant shall enter into an amendment (the Lessee hereby acknowledge "Expansion Space Amendment") adding the Expansion Space (or applicable portion thereof) to the Premises on the terms set forth herein and agree reflecting the changes in the Base Rent, Tenant’s Proportionate Share, and such other appropriate terms; provided that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's an otherwise valid exercise of the Expansion Option must shall be reconciled within fully effective whether or not the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which Space Amendment is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eexecuted., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor Provided that Tenant is not in default under this Lease beyond any applicable notice and the Lessee hereby acknowledge and agree thatcure period, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option right, (the "Expansion Option"), by providing a written notice ) to the Lessor (the "Expansion Option Election Notice") at any time be exercised on or before one month prior to the second (2nd) anniversary expiration of any Term under the Phase I Commencement Date (such two (2) year period being hereinafter referred to Lease, as the "Expansion Option Exercise Period")hereby amended, of requiring the Lessor to expand the Building by constructing an Demised Premises to include the additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area premises depicted on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" Attachment 2 attached hereto and made a part hereof, which the parties hereto agree for all purposes under this Lease, contains an area of 3,041 rentable square feet ("Expansion Space"). If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day Tenant shall give Landlord and Overlandlord thirty (30) days prior written notice of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have its exercise of the right to recapture expand into the Expansion Space as herein provided. Tenant agrees to accept the Expansion Space in an "as is" physical condition and remove Tenant shall not be entitled to receive any allowance, credit, concession or payment from this Lease any or all of that portion Landlord for the improvement thereof. All of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto terms and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability provisions of this Lease and shall be applicable to the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) Expansion Space. The annual Minimum Base Rent for the Phase III Building for Expansion Space shall be equal to: (i) Twenty Dollars and Fifty Cents ($20.50) per rentable square foot per year thereof during the period commencing on May 1, 2004 and ending on January 31, 2005; (ii) $21.50 per rentable square foot per year thereof during the period commencing February 1, 2005 and ending on January 31, 2006; (iii) Twenty Two Dollars and Six Cents ($22.06) during the period commencing on February 1, 2006 and ending on December 30, 2006; (iv) Twenty Five Dollars and No Cents ($25.00) per rentable square foot per year during the first twelve Renewal Term, if any; and (12v) months following Twenty Six Dollars and No Cents ($26.00) per rentable square foot per year during the Phase III Commencement Date (hereinafter defined) second Renewal Term, if any, which shall be Three and 75/100 Dollars ($3.75) per square feet of space contained payable in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing equal monthly installments on the first (1st) anniversary day of each month after the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant Expansion Space is so added to the provisions of Paragraph 5(c) above (i.e., Demised Premises. In the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of event Tenant exercises the Expansion Option, Landlord and Tenant shall mutually execute and deliver an amendment to this Lease reflecting the entire Term Expansion Space on the terms herein provided. The Expansion Option herein granted shall automatically terminate upon the earliest to occur of (i) the expiration or termination of this 31 Lease for Lease, (ii) the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set termination of Tenant's right to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion possession of the construction of the Phase III Building premises, (the "Phase III Commencement Date"iii) and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, any assignment or subletting by Tenant except as provided for in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused bySection 6.03, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (xiv) the Lessor shall have the right failure of Tenant to recapture and remove all timely or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Amendment and Attornment Agreement (Penwest Pharmaceuticals Co)
Expansion Option. (a) The Lessor Provided: (i) Tenant is not then in default of the Lease; (ii) no more than 3 monetary Events of Default have occurred within any 60-consecutive month period after the date of this Amendment; (iii) the Lease is in full force and effect; (iv) Tenant is the Lessee hereby acknowledge originally named Tenant (or its transferee under a Permitted Transfer); and agree that(v) Tenant (or its transferee under a Permitted Transfer) is then occupying 100% of the Premises for the conduct of Tenant’s business (or for the conduct of a transferee’s business under a Permitted Transfer), subject then Tenant has the option (“Expansion Option”) to lease all (but not less than all) of the approximately 13,220 rentable square feet known as Suite 2-200 and shown on Exhibit A-4 attached hereto (“Expansion Space”) upon the terms and conditions hereinafter set forth, forth in this Section. If Tenant desires to exercise the Lessee shall have the option (the "Expansion Option"), by providing Tenant shall send a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary Landlord of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day irrevocable exercise of the Expansion Option Exercise Period(“Tenant’s Expansion Notice”), then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion which must be received by Landlord before May 31, 2022, time being of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum)essence. Upon the Lessee's proper Tenant’s delivery of Tenant’s Expansion Notice, Tenant may not thereafter revoke Tenant’s exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the The Term for the entire Building Expansion Space shall commence on the date (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III “Expansion Space Commencement Date"”) and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
earlier of: (i) terminate this Lease, whereupon this Lease shall so terminate as of a the date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in on which event (x) the Lessor shall have the right to recapture and remove Tenant first occupies all or any portion of the Recapture Land from Expansion Space for the applicability conduct of this Lease and any business; or (ii) 90 days after the Lessor may, thereafter, utilize and develop such portion date Landlord delivers possession of the Recapture Land, Expansion Space to Tenant.
(yb) Paragraph 23(b) shall be deemed omitted from Notwithstanding anything to the contrary in this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal subject, subordinate, and in all respects inferior to the Lessee rights of any third party leasing space at the Building under its existing lease for the Expansion Space (including, without limitation, any lease term extension period(s) contained in such tenant’s lease, regardless of whether the extension right or agreement is contained in such lease or is agreed to at any time by Landlord and the same tenant under such lease). Notwithstanding the foregoing, Landlord: (i) agrees not to grant the existing tenant in the Expansion Space an option or right to extend its term past November 1, 2023, unless such right is subordinate to Tenant’s right to lease the Expansion Space provided Tenant provides Tenant’s Expansion Notice before May 31, 2022, and (ii) represents and warrants to Tenant that no other third party leasing space at the Building has, or will have, rights to the Expansion Space beyond September 1, 2023. If an Event of Default exists at the time Landlord receives Tenant’s Expansion Notice or on the first day that Tenant commences to lease the Expansion Space, Landlord, at Landlord’s option, shall not be applicable have the right to any successor or assignee nullify Tenant’s exercise of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth with respect to the Expansion Space.
(c) Tenant shall take the Expansion Space in this Lease “AS IS” condition, and as permitted under Landlord shall have no obligation to make any improvements or alterations to the Expansion Space. With respect to the Expansion Space, Tenant shall pay Tenant’s Share of Operating Expenses and utilities pursuant to the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior Except to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as extent expressly set forth in this Section to the contrary, if Tenant elects to lease the Expansion Space, such space shall become subject to the Lease upon the same terms and conditions as are then applicable to the original Premises, including without limitation the Expiration Date. Upon the Expansion Space Commencement Date, the “Premises” shall include the Expansion Space and, except as otherwise set forth in Subparagraph (f) below and on Exhibit "J" attached to this Section, all computations made under the Lease and made a part hereof, shall not be based upon or affected by the Lessee's exercise rentable area of its the Premises shall be recomputed to include the Expansion Option. 32Space.
(fd) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 (i) Base Rent for the re-setting of a new ten (10) first year term for that Tenant leases the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of Expansion Space shall be at the Expansion Option must be reconciled within the context of the Lessee's two Rent (2as defined below) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered multiplied by the Lessor to number of rentable square feet in the Lessee on that date which is two Expansion Space (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly measured per BOMA standards as set forth in Paragraph 38 of this the Current Lease). When Base Rent for the first year that Tenant will lease the Expansion Space is being determined, Base Rent for the second and all subsequent years that Tenant will lease the Expansion Space shall also be determined (in accordance with the same procedures as are set forth herein for determining the Expansion Option Rent) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, based upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, then-prevailing annual rent escalation factor in the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIapplicable leasing market.
Appears in 1 contract
Sources: Lease (BigCommerce Holdings, Inc.)
Expansion Option. Tenant acknowledges that the Fountainhead Park One office building (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election NoticeFPO") at any time prior is leased in its entirety to the second United Services Automobile Association (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise PeriodUSAA"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise expiration of the Expansion Option, the entire Term USAA lease or upon earlier termination of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the LessorUSAA's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason lease on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land FPO ("Vacated Space"), Landlord shall notify Tenant and provided Tenant is not in Default, and further provided that FPO and Fountainhead Park Two are owned by the same entity, Tenant shall have the option to lease the Vacated Space. In the event Tenant wishes to exercise such option, Tenant shall notify Landlord in writing within fifteen (15) days of receipt from the applicability Landlord of this Lease and the Lessor may, thereafter, utilize and develop such portion notification of the Recapture Landdate on which the Vacated Space becomes available. Within ten (10) days after receipt of such notification from Tenant, (y) Paragraph 23(b) Landlord shall be deemed omitted from provide Tenant with a lease agreement incorporating the same terms and conditions as those in this Lease, and (z) notwithstanding anything contained in Paragraph 38with the following exceptions:
(a) the Base Rent for the Vacated Space shall be the then current market rent, but not less than the remaining Base Rent scheduled on this Lease increased by the cumulative increase (if any ) in the Consumer Price Index for All Urban Consumers (CPI-U) published by the Bureau of Labor Statistics of the United States Department of Labor (1982-84 = 100) from Tenant's Commencement Date to the contrary, a successor or assignee of time Tenant exercises the Lessee may exercise option; (b) the Extension Options as set forth in this Lease.
(d) The Expansion Option allowance for Tenant improvements to the vacated space shall be personal to $5.00 per rentable square foot; (c) the Lessee and term of such lease shall be coterminous with the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms Term of this Lease. The Lessee may exercise its Expansion Option only by serving on , but in no event shall the Lessor the Lessee's Expansion Option Election Notice prior to the expiration term of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to such lease be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of less than five (5) years each under Paragraph 38 and in the event the remaining Term of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first Lease is less than five (5) year Extension Period under Paragraph 38 years, the Term of this Lease shall commence upon be extended to provide for the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed remaining Term to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) be not less than five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Leaseyears. For purposes of illustration onlyDuring such extended period, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Dateany, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically Base Rent shall be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee calculated as expressly set forth in Paragraph 38 (a) above; (d) the provisions of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermoresuch lease shall, anything contained in this Lease each instance where referenced therein, refer to the contrary notwithstanding, upon the Lessee's proper exercise of its FPO; and (e) there will be no Additional Funding provided by Landlord in connection with such lease. This Expansion Option as hereinabove set forth, is personal to Tenant and Tenant shall not have the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date right to assign its expansion rights to any assignee or sublessee of the Phase IIILeased Premises, except to any Affiliate of Tenant, as defined in the Lease.
Appears in 1 contract
Expansion Option. (a) The Lessor and Provided that no uncured material default by Tenant has occurred under any term or provision contained in the Lessee hereby acknowledge and agree thatLease, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the right and option (the "Expansion Option")) during the Extension Term to expand the New Premises effective as of May 1, 2026, to include Floor 19 of the Premises comprised of 21,262 rentable square feet and/or an alternative floor if Tenant previously exercised the Hold Option on Floor 19 for use by providing a written notice to Tenant (“Expansion Space”) for the Lessor remainder of the then remaining Extension Term (the "Expansion Option Election NoticeTerm") at any time prior under the same terms, conditions and covenants contained in this Seventeenth Amendment, except that: (a) no abatements, inducements or other concessions, if any, applicable to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect Extension Term shall apply to the Phase III Building Expansion Term; (b) the "Phase III Lessor's Improvements") Base Rent shall be similar equal to the Phase II Lessor's Improvements, but in any event, per square foot rates for Base Rent for the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which New Premises at the Lessor receives time the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent Space is added to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto New Premises and made shall include a part hereof. If the Lessee fails to provide the Lessor with tenant improvement allowance for the Expansion Option Election Notice by the final day Space equal to Sixty-Seven Dollars and 08/100 ($67.08) per square foot of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee Space; (c) Tenant shall have no such further Expansion Option Option; and thereupon (d) monthly parking charges for spaces allocated to the Lessor shall have Expansion Space will reflect the right to recapture and remove from this Lease any or all of that portion existing rate effective at the time of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise commencement of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement DateTerm. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may To exercise its Expansion Option only by serving hereunder, Tenant shall provide written notice ("Expansion Notice") to Landlord on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration or before May 1, 2025. Landlord shall reply within thirty (30) business days of receipt of the Expansion Option Exercise Period. In the event the Lessee does not timely Notice and properly exercise its Expansion Option, then notify Tenant in writing of the Expansion Option Space then available for lease, and if available, Tenant shall automatically become null and void and be granted the option to lease the Expansion Space under the terms set forth herein. If Tenant elects to lease such Expansion Space, Tenant shall give notice thereof to Landlord. The parties shall thereafter enter into an amendment of no further force and effect and the Lessee Lease reflecting the inclusion of the applicable Expansion Space into the New Premises. Failure by Tenant to provide the Expansion Notice within the time limits set forth herein shall no longer have the constitute a waiver of such Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Office Lease (KBS Real Estate Investment Trust II, Inc.)
Expansion Option. (a) The Lessor Section 39.1 Provided that no Event of Default, or an event which, upon the giving of notice or the passage of time could become and the Lessee hereby acknowledge Event of Default, has occurred and agree thatis continuing under this Lease at such time, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have the option (right to lease the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") Additional Space shown on Exhibit A at any time prior to the second (2nd) first anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred Date. If Tenant desires to as lease the "Expansion Option Exercise Period")Additional Space, of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof Tenant shall give notice (the "Phase III Building"“Tenant Election Notice”) for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of spaceto Landlord. The Lessor's Improvements with respect If Tenant shall fail to deliver such Tenant Election Notice prior to the Phase III Building (first anniversary of the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Commencement Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor Landlord shall have the right to recapture lease all or any portion of such Additional Space to any third party on any terms Landlord shall elect and remove from this Lease Tenant shall have no further right whatsoever to lease all or any or all of that portion of the Real Property as shown Additional Space.
Section 39.2 If Tenant shall deliver a Tenant Election Notice within the period set forth in Section 39.1, the following shall apply:
(a) the Additional Space shall be added to and deemed a part of the Premises thirty (30) days after delivery of Tenant’s Election Notice (the “Additional Space Commencement Date”) upon the same terms and conditions of this Lease, as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as same may be so designated by modified in accordance with the Lessor, shall be removed from the applicability following provisions of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.Section 39.2;
(b) The annual Minimum the Base Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary Additional Space Commencement Date by an amount equal to the Additional Space Base Rent, which shall be calculated by multiplying the rentable square footage of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to Additional Space by the provisions of Paragraph 5(c) above (i.e., the Minimum then-current annual Base Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.square foot;
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as term of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) Additional Space shall be coterminous with the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of Term under this Lease and shall expire on the Lessor may, thereafter, utilize and develop such portion of same date as the Recapture Land, Expiration Date (yas it may have been extended) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.hereunder;
(d) The Expansion Option the Additional Space shall be personal delivered in its “as is” condition (i) as a “warm lit shell” with electric service and HVAC stubbed to the Lessee Additional Space and (ii) sprinkler heads installed and turned up for Life Safety. Landlord shall have no obligation to perform any other work or make any installation in or to the same Additional Space. Landlord shall not be applicable to any successor or assignee allow Tenant a construction allowance of [***] ($[***]) Dollars per rentable square foot of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion OptionAdditional Space, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be paid against third-party invoices for work completed in the Additional Space as expressly set forth in this Lease and, except certified by Tenant’s architect and accompanied by lien waivers and other reasonable documentation as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected required by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 Landlord for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIcompleted work;
Appears in 1 contract
Sources: Lease Agreement (NTN Buzztime Inc)
Expansion Option. A. Tenant may lease additional space (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), if:
1. Tenant, after any applicable grace periods have expired, is not in default under this Lease; provided that if Tenant fails to cure any default existing at the time Tenant's Five, Ten or Fifteen Year Notice, as the case may be, is given 40 within the applicable grace periods, Landlord, at its option, may declare Tenant's Five, Ten or Fifteen Year Notice, as the case may be, to be null and void; and
2. no more than fifteen percent (15%) of the Premises (excluding any subletting of the portion of the Premises located on the 10th floor of the Building) is sublet to parties other than Members at the time of Landlord's receipt of the Five, Ten and/or Fifteen Year Notice (defined below), as the case may be; and
3. this Lease has not been assigned, except to a Successor; and
4. the Five, Ten and/or Fifteen Year Space (defined below) is intended to be for the exclusive use of Tenant or a Successor only, except as permitted by providing a written subsections 14.C. and 14.D.; and
5. for Fifteen Year Space only, Tenant has exercised or concurrently exercises its Renewal Option (Section 44); and
6. Landlord receives notice to the Lessor (the "of exercise of this Expansion Option Election for:
a. Five Year Space ("Five Year Notice") at any time prior on or before March 31, 1992; and
b. Ten Year Space ("Ten Year Notice") on or before March 31, 1997; and
c. Fifteen Year Space ("Fifteen Year Notice") on or before November 30, 2002; and
7. Tenant executes and returns the Five, Ten or Fifteen Year Amendment(s), as the case mat be, (subsection 48.D.1. below) within thirty (30) days of their submission to Tenant.
B. Landlord shall provide Tenant with Five Year Space, Ten Year Space and Fifteen Year Space, as the case may be, in accordance with Tenant's priority list to the second extent possible, considering the availability of space in the Building and in the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Tenant's priority list is as follows: first, on floors 11 through 17 inclusive, in the Building or on floors 2 through 22 inclusive, in the 30 South ▇▇▇▇▇▇ Building (2nd"First Location"); secondly, on floors 23 through 30 in the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Second Location"); and thirdly, on floors 18 through 40 inclusive, in the Building or on floors 31 through 40 inclusive, in the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Third Location") anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter First, Second, and Third Location shall collectively be referred to herein as the "Expansion Option Exercise PeriodLocation"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date".
C. 1. If the Lessee properly Tenant is able to and appropriately exercises its Expansion Option as hereinafter set forthfor Five Year Space, then Landlord shall designate one (1) full floor located within the Lessor Expansion Location ("Five Year Space") on or before 180 days after March 31, 1992 and shall construct deliver such Five Year Space during the Phase III Building upon that certain portion of the Real Property immediately adjacent period commencing 90 days after Landlord designates such Five Year Space and ending on April 1, 1994, but in no event prior to the westerly side wall of the Building as shown on Exhibit January 1, 1993 ("B-4" attached hereto and made a part hereofFive Year Space Window")...
2. If the Lessee fails Tenant is able to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee appropriately exercises its Expansion OptionOption for Ten Year Space, Landlord shall designate one (1) full floor located 41 within the exercise thereof may not be revoked, except as provided in Paragraph 39(cExpansion Location ("Ten Year Space") below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before 180 days after March 31, 1997 and shall deliver such Ten Year Space during the date which is twelve period commencing 90 days after Landlord designates such Ten Year Space and ending on July 1, 1999, but in no event prior to October 1, 1997 (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee"Ten Year Space Window"), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal 3. If Tenant is able to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise appropriately exercises its Expansion Option only by serving for Fifteen Year Space, Landlord shall designate one (1) full floor located within the Expansion Location ("Fifteen Year Space") on or before 180 days after November 30, 2002 and shall deliver such Fifteen Year Space during the Lessor the Lessee's Expansion Option Election Notice period commencing 90 days after Landlord designates such Fifteen Year Space and ending on June 1, 2005, but in no event prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion OptionJune 1, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option2003 ("Fifteen Year Space Window").
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. On the conditions (awhich conditions Landlord may waive, at its election, by written notice to Tenant at any time) The Lessor that both at the time that Tenant exercises its expansion option under this Section 11.1 and as of the Lessee hereby acknowledge date upon which the Expansion Premises, as hereinafter defined, would have otherwise become incorporated into the Premises: (i) there exists no monetary or material non‑monetary Event of Default and agree thatthere have been no more than two (2) monetary or material non‑monetary Events of Default during the Term, subject to (ii) this Lease is still in full force and effect, and (iii) Tenant has neither assigned this Lease nor sublet more than thirty-three percent (33%) of the terms and conditions hereinafter set forthRentable Floor Area of the Premises (except for an assignment or subletting permitted without Landlord’s consent under Section 5.6.4 hereof), the Lessee Tenant shall have the option to expand the Premises to include additional space in the Building in an area and configuration to be designated by Landlord in Landlord’s sole discretion so long as such area contains not less than 15,000 nor more than 25,000 square feet of Rentable Floor Area (as so designated by Landlord, the “Expansion Premises”) for a term commencing on a date designated by Landlord and falling during the period between the 48th and 78th full calendar months of the Original Lease Term following the Commencement Date (the "“Expansion Option"Premises Delivery Window”). The Expansion Premises shall be located on the fourth (4th) floor of the Building, by providing a written notice to except that, if Tenant did not exercise the Lessor (adjustment option under Section 2.1.1 of this Lease, then the "Expansion Option Election Notice") Premises may, at any time prior to Landlord’s option, be located on the second (2nd) anniversary floor of the Phase I Commencement Date Building. For purposes hereof, Landlord and Tenant agree that the fourth (such two (24th) year period being hereinafter referred to as the "Expansion Option Exercise Period"), floor of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) consists of 47,950 square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture LandRentable Floor Area.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease Agreement (Mimecast LTD)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee A. Tenant shall have the option (the "Expansion Option"), by providing a written notice ) to lease the Lessor 34,319 square feet of rentable area located on the 2nd floor of the Spear Tower of the Building and shown cross-hatched on EXHIBIT A-3 to this Lease (the "Expansion Option Election Space") if:
1. Landlord receives written notice (the "Expansion Notice") at any time prior to the second (2nd) anniversary from Tenant of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39on or before June 30, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which 2004; and
2. Tenant is ten (10) years and six (6) months after the Phase I Commencement Date not in Monetary Default or material non-monetary default under this Lease and at the second time Landlord receives the Expansion Notice; and
3. no more than 16,500 rentable square feet of the Premises (2ndin the aggregate) five is sublet (5other than pursuant to a Permitted Transfer) year Extension Period under Paragraph 38 of at the time Landlord receives the Expansion Notice; and
4. this Lease shallhas not been assigned (other than pursuant to a Permitted Transfer) prior to the time Landlord receives the Expansion Notice; and
5. the Expansion Space is intended for the exclusive use of Tenant only during the Lease Term; and
6. Tenant has not vacated or abandoned the Premises at the time Landlord receives the Expansion Notice.
B. 1. The initial annual Base Rent rate per square foot for the Expansion Space shall be the Prevailing Market Rate (hereinafter defined) per square foot for the Expansion Space. Base Rent shall increase, thereforeif at all, commence upon in accordance with the fifteenth (15th) year anniversary date increases assumed in the determination of Prevailing Market Rate. Base Rent attributable to the Expansion Space, as determined in Landlord's discretion, shall be payable in monthly installments in accordance with the terms and conditions of Article IV of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. 21.1 Provided that Tenant has not sublet more than one (1) full floor of the Demised Premises; then, between (and including) the sixty-third (63rd) and seventh-fifth (75th) months of the Lease Term, Tenant shall have the one time right to lease between 10,000 square feet of Rentable Area and a full floor in the Building (the “Expansion Space”) which shall be offered in writing to Tenant by Landlord. The exact size, location, and configuration of the Expansion Space shall be as reasonably determined by Landlord, provided that the Expansion Space shall be contiguous to the Demised Premises. The Expansion Space shall be offered to Tenant in writing at (i) One Hundred Percent (100%) of the Prevailing Market Rate for Base Annual Rent and Additional Rent in effect at the time the Expansion Space is offered to Tenant, (ii) One Hundred Percent (100%) of the fair market concessions in effect at the time the Expansion Space becomes available, including, without limitation, fair market buildout allowance and a reasonable buildout time of not less than ninety (90) days, in the case of space less than 15,000 square feet and One Hundred Twenty (120) days in the case of space in excess of 15,000 square feet following the date such space is delivered to Tenant, and (iii) for a term co-terminus with the Term for the remainder of the Demised Premises (subject to extension along with the Term for the original Demised Premises in the event Tenant properly exercises any Renewal Options). Landlord shall send written notice to Tenant (the “Expansion Notice”) before the last day of the fifty-first (51st) month of the Lease Term (but not before the forty-fourth (44th) month of the Lease term) setting forth (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day description of the Expansion Option Exercise PeriodSpace being offered, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made including a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
diagram thereof; (b) The annual Minimum Rent the date the Expansion Space is available for lease by Tenant (which must be between the Phase III Building for dates set forth in the first twelve sentence of this Section) (12the “Availability Date”); and (c) months following Landlord’s good faith determination of the Phase III Commencement Date (hereinafter defined) shall be Three Base Annual Rent, Additional Rent and 75/100 Dollars ($3.75) other market concessions, all calculated on a per square feet foot of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building Rentable Area basis. Tenant shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new have ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term business days in which to accept in writing Landlord’s offer for the entire Building Expansion Space (i.e.which Expansion Space shall not be less than 10,000 square feet of Rentable Area), including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion time being of the construction of essence. If Tenant fails to accept Landlord’s offer within the Phase III Building (the "Phase III Commencement Date") andtime specified, therefore, the First Extension Period, if properly exercised pursuant Landlord shall have no further obligation to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent Tenant with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, space except as set forth in Subparagraph Section 22 hereof. In the event Tenant accepts Landlord’s offer for the entire Expansion Space within the time specified, Tenant agrees to accept the Expansion Space in its “as is” condition at the time it is delivered to Tenant, but with Landlord’s Delivery Work done provided that the Expansion Space is delivered with the Systems servicing the premises in good working order and condition, and with all Hazardous Substances removed or encapsulated as described in Exhibit E with respect to the Expansion Space. If Tenant accepts Landlord’s offer for the expansion space, but disputes the amount of Base Annual Rent and other concession offered by Landlord, Landlord and Tenant shall negotiate in good faith to determine such amounts for a period of thirty (f30) below days, and on Exhibit "J" attached if they are unable to agree, then the Base Annual Rent and market concessions for the Expansion Space shall be determined in using the procedure set forth in Article 19 for determination of the Prevailing Market Rate. Once Tenant has accepted the Expansion Space, then the Tenant shall execute an amendment to this Lease evidencing the terms and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 conditions for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise leasing of the Expansion Space. Landlord makes no representation that any carpeting or special improvements present in the additional space prior to the time the previous occupant vacates the space will remain for Tenant’s use. This Expansion Option must be reconciled within the context is contingent on Tenant not having been in default (of which Landlord had previously given Tenant notice) of any of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 terms or conditions of this Lease shall commence upon at the tenth (10th) year anniversary time of Landlord’s offer, at the time of Tenant’s acceptance of Landlord’s offer and thereafter through the date on which the term of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eadditional space commences., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Office Building Lease (Corporate Executive Board Co)
Expansion Option. On or before April 30, 2024 (athe “Expansion Option Period”), Tenant shall have the option to expand the Premises to include any one or more of the following full floor east or west increments (the “Potential Expansion Space Increments”) The Lessor if and to the Lessee hereby acknowledge extent that the applicable Potential Expansion Space Increment is then Available (as defined below), provided that Landlord shall ensure that at least one of the following Potential Expansion Space Increments is then Available: (i) Suite 500W, consisting of approximately 15,267 rentable square feet located on the fifth (5th) floor of the West Wing of the Building (the “5W Increment”), (ii) Suites 300E and agree that301E, collectively, consisting of approximately 15,969 rentable square feet in the aggregate on the third (3rd) floor of the East Wing of the Building (the “3E Increment”), and/or (iii) Suite 200W, consisting of approximately 10,514 rentable square feet on the second (2nd) floor of the West Wing of the Building (the “2W Increment”); subject to the terms and conditions hereinafter set forth, the Lessee shall have the option hereof (the "“Expansion Option"”). If Tenant desires to lease any of the Potential Expansion Space Increments, by providing a Tenant shall deliver written notice thereof (“Tenant’s Availability Request XE “Tenant’s Expansion Notice” ”) to Landlord on or before the Lessor (expiration of the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such Period. Within two (2) year period being hereinafter referred Business Days after receipt of Tenant’s Availability Request, Landlord shall notify Tenant in writing (“Landlord’s Availability Notice”) of all Potential Expansion Space Increments that are then Available, provided that at least one (1) of the Potential Expansion Space Increments must be Available, and the date(s) on which Landlord anticipates delivering possession of the applicable Potential Expansion Space Increment to Tenant free of any occupants (as applicable, the "Expansion Option Exercise Period"”Anticipated Delivery Date”), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements"which Anticipated Delivery Date(s) shall be similar not occur prior to September 1, 2024. If Tenant desires to lease any Potential Expansion Space Increments listed as Available on Landlord’s Availability Notice, Tenant shall deliver written notice thereof (“Tenant’s Expansion Notice”) within ten (10) days after ▇▇▇▇▇▇’s receipt of Landlord’s Availability Notice. Tenant’s Expansion Notice must identify which of the Phase II Lessor's Improvements, but in any eventAvailable Potential Expansion Space Increments it is electing to lease (each Available Increment elected by Tenant, the Phase III Lessor's Improvements applicable “Expansion Space”). For purposes of this Section 1, a Potential Expansion Space Increment shall comply with all then applicable laws. The actual date be considered “Available” if no part of such Potential Expansion Space Increment is subject to any new lease entered into after the Lease Date or any letter of intent or mutually agreed upon which terms and conditions by Landlord and a third party evidenced by a term sheet or lease proposal concerning the Lessor receives the Lessee's possible lease of such Potential Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forthSpace Increment, then the Lessor shall construct the Phase III Building upon it being acknowledged and agreed that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor Landlord shall have the right to recapture market the Potential Expansion Space Increments and remove from this Lease to negotiate and enter into any lease proposals or all leases therefor with any third party, provided that, upon Tenant’s written request, Landlord shall use reasonable efforts to keep Tenant apprised of that any prospective leasing of any portion of the Real Property Potential Expansion Space Increments during the Expansion Option Period, and provided further that at least one (1) of the Potential Expansion Space Increments must be Available to lease to Tenant pursuant to the terms hereof during the Expansion Option Period. If Tenant timely delivers Tenant’s Expansion Notice, then (A) Landlord shall use commercially reasonable efforts to deliver possession of the applicable Expansion Space to Tenant by the applicable Anticipated Delivery Date, subject to any existing tenant vacating the same by such date, (B) Tenant’s leasing of each Expansion Space shall be on all of the same terms and conditions of the Lease, except that:
(i) the Term with respect to each applicable Expansion Space (as shown as applicable, the shaded area “Expansion Space Term”) shall commence on Exhibit "A-6" attached hereto the later of (a) September 1, 2024 and made a part hereof (b) the date of actual delivery of the applicable Expansion Space to Tenant (the "Recapture Land"applicable “Expansion Space Commencement Date”) and shall expire on the last day of the sixty-sixth (66th) full calendar month following the latest applicable Expansion Space Commencement Date (the “New Expiration Date”);
(ii) commencing as of the date that is six (6) months after the applicable Expansion Space Commencement Date (the applicable “Expansion Space Rent Commencement Date”), whereupon the Recapture Land, or Base Rent for such portion thereof as may be so designated by the Lessor, Expansion Space shall be removed from payable at the applicability of this Lease same per rentable square foot per annum rate then payable (and as payable thereafter) for the Lessor mayOriginal Premises through the Original Expiration Date, thereafter, utilize and develop such for any portion of the Recapture Land.applicable Expansion Space Term beyond the Original Expiration Date, the Base Rent for such Expansion Space shall continue to increase three percent (3%) annually on each anniversary of the Rent Commencement Date for the Original Premises that occurs during such Expansion Space Term;
(biii) The annual Minimum Rent Operating Cost Excess, Tax Excess and Insurance Excess shall continue to be payable for the Phase III Building for Premises as provided under the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; providedexcept that, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary applicable Expansion Space Rent Commencement Date, the “Tenant’s Proportionate Share” shall be adjusted to include the rentable square of such Expansion Space in the total rentable area of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(cPremises;
(iv) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building Premises, as may be expanded pursuant to this Expansion Option, shall be coterminous and expire on the New Expiration Date, and accordingly, the Original Term for the Original Premises automatically shall be extended beyond the Original Expiration Date through the New Expiration Date, and the Base Rent for the Original Premises for such extended portion of the Term shall continue to increase three percent (3%) annually on each anniversary of the Rent Commencement Date for the Original Premises that occurs during such extended Term;
(v) the Expansion Space shall be delivered in its then “AS-IS” condition and in the condition required in Section 3(a) of the Lease (exclusive of the obligation from Landlord to Substantially Complete the Work), without any obligation on the part of Landlord to perform any other work or improvements or otherwise prepare the Expansion Space for Tenant’s occupancy;
(vi) Landlord shall provide Tenant with a construction allowance in an amount equal to $110.00 per rentable square foot in the Expansion Space (the “Expansion Space Allowance”); and
(vii) the Security Deposit will be proportionately increased based on the increase in the rentable square footage of the Premises. (For illustration purposes only, if Tenant exercises its Expansion Option with respect to the 2W Increment and the 5W Increment, and the Commencement Date for the original Premises occurs on September 1, 2024, the Expansion Space Commencement Date for the 2W Increment occurs on October 15, 2024, and the Expansion Space Commencement Date for the 5W Increment occurs on February 1, 2025, then (w) the New Expiration Date would be July 31, 2030, based on the latest applicable Expansion Space Commencement Date (i.e., including February 1, 2025 for the Phase I Building5W Increment); (x) with respect to the original Premises, the Phase II Building Term would be the period from September 1, 2024 through July 31, 2030, and the Phase III Building) shall automatically Rent Commencement Date for the original Premises would be re-set to be a new ten (10) year Term from March 1, 2025, with Base Rent for the Lessor's substantial completion original Premises payable at the initial per annum rate of $88.00 per rentable square foot of the construction original Premises, increasing three percent (3%) annually on each March 1st through the expiration of the Phase III Building Term on July 31, 2030; (y) with respect to the "Phase III Commencement Date") and, therefore2W Increment, the First Extension PeriodExpansion Space Term would be the period from October 15, if properly exercised pursuant 2024 through July 31, 2030, and the Expansion Space Rent Commencement Date for the 2W Increment would be April 15, 2025, with Base Rent for the 2W Increment payable at the same rate then payable (and as payable thereafter) for the original Premises, i.e., at the initial per annum rate of $88.00 per rentable square foot of the 2W Increment, increasing three percent (3%) annually on each March 1st through the expiration of such Expansion Space Term on July 31, 2030; and (z) with respect to the provisions 5W Increment, the Expansion Space Term would be the period from February 1, 2025 through July 31, 2030, and the Expansion Space Rent Commencement Date for the 5W Increment would be August 1, 2025, with Base Rent for the 5W Increment payable at the same rate then payable (and as payable thereafter) for the original Premises, i.e., at the initial per annum rate of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date $88.00 per rentable square foot of the Phase III Commencement Date and 5W Increment, increasing three percent (3%) annually on each March 1st through the Second Extension Periodexpiration of such Expansion Space Term on July 31, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th2030.) year anniversary date of the Phase III Commencement Date. Once the Lessee If Tenant timely exercises its Expansion Option, Landlord and Tenant shall execute an amendment to this Lease within thirty (30) days following each applicable Expansion Space Commencement Date memorializing the exercise thereof may not be revokedaddition of the applicable Expansion Space to the Premises, on the same terms as the Lease except as provided in Paragraph 39(c) below. The Minimum Rent attributable the foregoing, provided that failure to execute such amendment shall not limit or affect in any way the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment obligations of all Additional Rent Landlord and Tenant with respect to the Phase III Building.
(c) If Expansion Space. Notwithstanding anything to the Phase III Commencement Date has not occurred contrary, ▇▇▇▇▇▇▇▇’s failure to deliver, or delay in delivering, all or any part of such Expansion Space, for any reason reason, shall not give rise to any liability of Landlord, shall not alter Tenant’s obligation to accept such space when delivered, shall not constitute a default of Landlord, and shall not affect the validity of the Lease. If Tenant fails or is unable to timely exercise its Expansion Option pursuant to this Section 1 with respect to all of the Expansion Space on or before the date which is twelve (12) months after expiration of the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused byPeriod, or attributable tothen such right shall lapse, time being of the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease essence with respect to the Phase I Building exercise thereof, and Phase II Buildingthis Expansion Option shall terminate automatically and this Section 1 shall be of no further force or effect, and Landlord may use any of the Potential Expansion Space Increments for its own use or lease any of the Potential Expansion Space Increments to third parties on such terms as Landlord may elect, in which event Landlord’s sole discretion. Tenant’s Expansion Option is personal to Tenant, and, notwithstanding anything to the contrary herein, Tenant’s Expansion Option is expressly conditioned upon all of the following: (xA) Tenant has not assigned the Lessor shall have the right to recapture and remove all Lease or sublet any portion of the Recapture Land from the applicability of this Lease and the Lessor mayPremises, thereafter, utilize and develop such portion of the Recapture Landother than to an Affiliate or in connection with a Permitted Transfer, (yB) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Landlord receives Tenant’s Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period, and (C) no uncured Event of Default exists as of the date the Tenant’s Expansion Notice is delivered to Landlord. In Further, notwithstanding anything to the event the Lessee does not contrary, if Tenant timely and properly exercise its Expansion Option, then exercises the Expansion Option shall automatically become null and void and thereafter an Event of no further force and effect and the Lessee shall no longer have Default occurs that has not been cured as of the Expansion Option.
(e) Anything contained in this Paragraph 39 Space Commencement Date, then Landlord may elect to nullify the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within by giving written notice thereof to Tenant on the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its applicable Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Space Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. Tenant shall have one (al) The Lessor right and option to expand the Lessee hereby acknowledge area of the Premises by as much as, and agree thatby no more than, sixty thousand (60,000) square feet of rentable area (the “Expansion Option”), subject to the following terms and conditions hereinafter set forthconditions:
A. The Expansion Option may be exercised by Tenant only by written notice given to Landlord during, and neither before nor after, the Lessee shall have the option first (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice"1st) at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following of the Phase III Commencement Date Additional Term (hereinafter defined) the “Expansion Notice”);
B. The Expansion Notice must specify the area or areas within a building or buildings owned by Landlord and located within Landlord’s administrative area on Aerojet Road that Tenant desires to add to the Premises (the “Expansion Area”);
C. If, at the time the Expansion Notice is given, the Expansion Area is available for leasing to Tenant, then Landlord and Tenant shall immediately enter into another written addendum to the Lease to effect a demise thereof to Tenant, at the same terms and conditions as the Premises are then being leased to Tenant under the Lease (with the exception that the rent shall be Three and 75/100 Dollars ($3.75) per square feet of space contained the fair market rental for such Expansion Area determined as set forth in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) subpart E of this Leaseparagraph 6), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Periodprovided that, if properly exercised pursuant to the provisions through no fault of Paragraph 38 aboveLandlord, shall automatically be deemed to commence upon that date which is the tenth Tenant and Landlord have not, within ninety (10th90) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months days after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused byNotice is given, or attributable toentered into a fully executed addendum to the Lease, the Lessee), the Lessee then Landlord may, by written notice to Lessor:
(i) Tenant, terminate this LeaseTenant’s Expansion Option, whereupon this Lease shall so terminate as and upon the giving of a date specified in Lessee's notice andsuch written notice, thereafter, neither the Lessor nor the Lessee Tenant shall have no further interest in, or rights to, the Expansion Area;
D. Whether or not the Expansion Area is “available for leasing to Tenant” shall be determined by Landlord in the exercise of its reasonable discretion. Without limiting the generality of the foregoing, Landlord may determine that the Expansion Area is not available for leasing to Tenant if it is then occupied by another tenant, is already subject to a leasing arrangement for any further liability and obligations under this Lease, or
(ii) continue this Lease period that would overlap with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion then remaining Additional Term or any part of the Recapture LandExtension Period, (y) Paragraph 23(b) or is used or expected to be used by Landlord for its own business operations. Landlord shall be deemed omitted from this Lease, and (z) notwithstanding anything contained respond in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable writing to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years business days of the receipt thereof, and six (6) months after advise Tenant as to whether the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects Expansion Area is “available for leasing to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would Tenant” (if properly exercised by the Lessee as expressly set forth in Paragraph 38 available, a “Notice of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIAvailability”); and
Appears in 1 contract
Sources: Lease (Health Net Inc)
Expansion Option. (a) The Lessor 6.1. Subject to the conditions set forth in this Article, and the Lessee hereby acknowledge and agree that, subject to any other parties’ pre-existing rights with respect to the terms and conditions hereinafter set forthExpansion Space (as defined below), the Lessee Tenant shall have the option (right, but not the "Expansion Option")obligation, by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine Premises (the “Expansion Option”) to include approximately seven thousand four hundred eleven (99,0007,411) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing Rentable Area on the first (1st) anniversary floor of the Phase III Commencement Date Building as more particularly shown on the floor plan attached hereto as Exhibit A (the “Expansion Space”).
6.2. Tenant may exercise the Expansion Option by providing Landlord, no later than March 31, 2017 (the “Expansion Notice Deadline”), with written notice that Tenant has elected to exercise the Expansion Option. Within ten (10) days after exercising the Expansion Option, Tenant and continuing on each anniversary date thereafter, pursuant Landlord shall enter into a written amendment to the provisions Lease (the “Expansion Amendment”), which amendment shall provide, unless otherwise agreed in writing, (a) that, subject to Section 6.5 below, the commencement date of Paragraph 5(cthe Expansion Space shall be the later of (i) above July 1, 2017 and (ii) the day after the date that Regulus (as defined below) surrenders the Expansion Space to Landlord in accordance with the terms of Regulus’ lease with Landlord, (b) that the Premises shall be increased to include the square feet of Rentable Area of the Expansion Space, (c) the new Base Rent, which Expansion Space Base Rent shall be at the then-current base rental rate per square foot of Rentable Area for the Premises under the Lease (and shall be escalated at the same rate and at the same time as the base rental rate escalations for the Premises), (d) Tenant’s new Pro Rata Share of Operating Expenses based upon the addition of the Expansion Space to the Premises, and (e) the proportionate increase to the Security Deposit such that the Security Deposit is an amount equal to one (1) month of Base Rent for the entire Premises (i.e., the Minimum Rent attributable Premises plus the Expansion Space) (which increase shall be payable to Landlord upon execution of the Expansion Amendment). In all other respects, this Lease shall remain in full force and effect, and shall (except with regard to (y) any obligation of Landlord in connection with the Tenant Improvements and the TI Allowance and (z) the first (1st) sentence of Article 5 of the Lease) apply to the Phase III Building Expansion Space. Time shall be increased by two percent (2%) per annum). Upon of the Lessee's proper essence as to Tenant’s exercise of the Expansion Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise the Expansion Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of the Expansion Option after the Expansion Notice Deadline.
6.3. Notwithstanding anything in this Article to the contrary, Tenant shall not exercise the Expansion Option during such period of time that Tenant is in default under any provision of the Lease. Any attempted exercise of the Expansion Option during a period of time in which Tenant is so in default shall be void and of no effect. In addition, Tenant shall not be entitled to exercise the Expansion Option if Landlord has given Tenant two (2) or more notices of default under the Lease, whether or not the defaults are cured, during the twelve (12) month period prior to the date on which Tenant seeks to exercise the Expansion Option.
6.4. Notwithstanding anything in this Lease to the contrary, the entire Term of this 31 Lease Expansion Option shall expire on March 31, 2017.
6.5. Tenant acknowledges that the Expansion Space is currently leased to Regulus Therapeutics Inc. (“Regulus”) and that Regulus’ lease with Landlord for the entire Building Expansion Space is currently scheduled to expire on June 30, 2017. Tenant agrees that any Expansion Amendment will provide that in the event of Regulus’ failure to surrender the Expansion Space in accordance with the terms of its lease with Landlord for any reason, then (i.e., the Phase I Building, the Phase II Building and the Phase III Buildinga) such Expansion Amendment shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revokedvoid or voidable, except as provided in Paragraph 39(c(b) below. The Minimum Rent attributable Landlord shall not be liable to the Phase III Building Tenant for any loss or damage resulting therefrom, and (c) Tenant shall be "net, net, net" to the Lessor and, therefore, the Lessee shall not be responsible for the payment of all Additional any Base Rent or Tenant’s Share of Operating Expenses (as defined below), in each case with respect to the Phase III Building.
(c) If Expansion Space only, until the Phase III Commencement Date has not occurred for any reason on or before the actual commencement date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion OptionSpace occurs.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.e., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Sources: Lease (aTYR PHARMA INC)
Expansion Option. (a) The Lessor Provided that no default has occurred and is continuing under the Lessee hereby acknowledge and agree thatLease at the time of the exercise of the following Expansion Option, subject to the terms and conditions hereinafter set forth, the Lessee Tenant shall have a right of First Offer for available contiguous office space on the option mezzanine and fourth floors (the "Expansion OptionEXPANSION SPACE"), by providing at the then market Rent with a written notice minimum term of five (5) years; this right of First Offer is subject and subordinate to any similar prior rights which existing Tenants may have. It is understood and agreed that any expansion space may be offered to Tenant pursuant to this clause well before said space is actually vacated, and that any expansion space may be offered to Tenant pursuant to this clause at any appropriate time, including for example, when a Tenant notifies Landlord of its intention to vacate from potential expansion space, or prior to the Lessor (the "Expansion Option Election Notice") time when a Lease is scheduled to terminate, or at any time prior when the Landlord would normally seek to the second (2nd) anniversary of the Phase I Commencement Date (offer for rent such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day of the Expansion Option Exercise Period, then the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect prior to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove offering all or any portion of the Recapture Land from Expansion Space to others, except to any existing tenants with prior rights at the applicability Building, Landlord shall notify Tenant in writing of this Lease the specific space being offered and the Lessor may, thereafter, utilize rent and develop other terms on which it is being offered. Tenant shall have fifteen (15) days from receipt of Landlord's notice to accept the space being offered by providing written notice of such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38acceptance to Landlord.
(aii) For a period of fifteen (15) days after receipt of any such notice from Landlord pursuant to this SECTION 38.2, Tenant shall have the contrary, a successor or assignee of right to lease the Lessee may exercise Expansion Space from Landlord upon the Extension Options as terms and conditions set forth in this Lease.
(d) such offer, and otherwise on the terms and conditions set forth herein. The terms and conditions of the Lease for the Expansion Option Space, shall generally be personal to the Lessee and the same shall not be applicable to any successor or assignee of as for the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Periodinitial Term. In the event Tenant agrees to lease the Lessee does not timely Expansion Space within such fifteen (15) day period, Landlord and properly Tenant shall promptly execute an amendment to the Lease, or new lease, indicating the location and configuration of the Expansion Space and stating the rent and other terms therefore.
(iii) If during or upon the expiration of such fifteen (15) day period, Tenant fails or declines to exercise its Expansion Option, then right to lease the Expansion Option Space then Tenant's option to exercise this option with respect to such Expansion Space shall automatically become null cease and void expire and be of no further force or effect until such time as the Expansion Space is again vacated by the tenant of such space or otherwise becomes available as provided below. The Basic Rent for any said expansion space shall be the then current fair market annual rent for 5 year leases of comparable Premises in the Fort Point Channel area of the City of Boston commencing on the date such expansion term is anticipated to begin, as reasonably and effect in good faith determined by Landlord and in consultation with Lessee. Further, it is the intention of the parties that the rent for the said term (5 years or otherwise) shall reflect the fair market rent during such period. In determining fair market rent, Lessor and Lessee shall no longer have consider, among other things, operating expenses for commercial office properties in the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstandingFort Point Channel area of Boston, the Minimum Rent applicable to inflation CPI, location of the Phase I Building and of the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by Premises within the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, and building amenities 29 and condition, on-site parking and public transportation. If Tenant disagrees with Landlord's determination of fair market annual rent for such Expansion Term, Tenant shall notify Landlord of Tenant's objection to said amount by written notice within twenty (20) days from the Phase II Building and the Phase III Building) upon the Lesseereceipt of Landlord's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this LeaseNotice. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39If Tenant so notifies Landlord, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date amount of the Phase III Commencement Date as opposed to that date which is Basic Rent for such Expansion Term shall be decided by two reputable appraisers with the MAl (Member Appraisal Institute) designation from the American Institute of Real Estate Appraisers and each with at least ten (10) years of experience in appraising commercial office space in the Fort Point Channel of downtown Boston comparable to the Premises, one selected by Landlord and six (6) months after one selected by Tenant, based on the Phase I Commencement Date under this Lease then fair market annual rent for leases of comparable lengths as are contemplated for the expansion area lease of comparable Premises in the Fort Point Channel area of the City of Boston commencing on the date such lease would commence. In determining fair market rent, Landlord and the second (2ndappraiser(s) five (5) year Extension Period under Paragraph 38 of this Lease shallshall consider, thereforeamong other things, commence upon operating expenses for commercial office properties in the fifteenth (15th) year anniversary date Fort Point Channel area of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after City of Boston, the Phase I Commencement Date under this Lease. For purposes inflation CPI, location of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if of the Phase III Building is delivered by Premises within the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, and building amenities and condition, on-site parking and public transportation. Landlord and Tenant shall each notify the Phase II Building and the Phase III Building) would automatically be re-set to be a new other of its chosen appraiser within ten (10) year Term from days of Landlord's receipt of Tenant's objection notice. Unless the Phase III Commencement Date(i.e., appraisers shall have reached a decision within ten (10) years from that date which is days after their selection, they shall select an impartial third MAl appraiser qualified as above within another ten (10) days. The three appraisers shall render their decision within ten (10) days following the selection of the third appraiser and shall notify Landlord and Tenant thereof. The unanimous written decision of the two first chosen (2) years without selection and six (6) months from participation of a third appraiser), or otherwise the Phase I Commencement Date) written decision of a majority of the three appraisers chosen as herein provided shall be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each pay their own appraisers and, thereforeif a third appraiser is needed as above, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase IIIshare his or her cost.
Appears in 1 contract
Expansion Option. (ai) The Lessor and the Lessee hereby acknowledge and agree that, subject Subject to the terms and conditions hereinafter set forth, the Lessee and provided BroadSoft is not in default beyond any applicable grace period set forth herein for curing such default, BroadSoft shall have the right at its option (the "“Expansion Option"), by providing a written notice ”) to sublease an additional approximately five thousand five hundred (5,500) Rentable Square Feet of space on the Lessor third (the "Expansion Option Election Notice"3rd) at any time prior to the second (2nd) anniversary floor of the Phase I Commencement Date (such two (2) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building approximately as shown on Exhibit "B-4" K attached hereto and made a part hereof. If (the Lessee fails to provide the Lessor with the “Expansion Option Election Notice by the final day Space”), on all of the Expansion Option Exercise Period, then same terms and conditions as are applicable to the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease), but not exceeding ninety-nine thousand (99,000) square feet of spaceinitial Sublet Premises; provided, however, such annual Minimum Rent for that the Phase III Building shall be increased commencing on Annual Base Subrent payable during the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of the Expansion Option, the entire initial Sublease Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
Expansion Space shall be equal to the Prevailing Market Rent (chereafter defined) If the Phase III Commencement Date has not occurred for any reason on or before the date which is twelve (12) months after the Expansion Option Notification Date Space (other but in no event less than the Annual Base Subrent (on a per Rentable Square Foot basis) payable from time to time to for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lesseeinitial Sublet Premises), and BroadSoft shall not be entitled to the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, orBroadSoft TI Allowance.
(ii) continue this Lease with respect to No earlier than eighteen (18) months before the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion anticipated delivery date of the Recapture Land from Expansion Space to BroadSoft, MIASI shall send BroadSoft notice (“Expansion Option Notice”) setting forth the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion anticipated delivery date of the Recapture LandExpansion Space (“Expansion Space Anticipated Delivery Date”), (y) Paragraph 23(b) which Expansion Space Anticipated Delivery Date shall be deemed omitted from this Lease, between the fifth (5th) and sixth (z6th) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee anniversaries of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) Sublease Commencement Date. The Expansion Option shall be personal exercisable by BroadSoft upon written notice to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee MIASI given no later than ten (other than a corporate successor or affiliate of the Lessee10) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration business days after BroadSoft’s receipt of the Expansion Option Exercise PeriodNotice. In BroadSoft’s failure to give such notice by such date shall constitute a waiver by BroadSoft of its right to exercise the event the Lessee does not timely and properly exercise its Expansion Option. If within thirty (30) days following delivery of BroadSoft’s Expansion Option Notice, MIASI and BroadSoft have not mutually agreed on the Prevailing Market Rent for the Expansion Space, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have Prevailing Market Rent for the Expansion OptionSpace shall be determined by the three (3) broker method in the manner described in Section 3(c)(vi) below.
(iii) As of the date of delivery by MIASI to BroadSoft of the Expansion Space, (i) the Expansion Space shall be added to and constitute a part of the Sublet Premises subject to all the terms and conditions of this Sublease, (ii) the Rentable Square Feet of the Sublet Premises shall be increased by including the Rentable Square Feet of the Expansion Space, (iii) BroadSoft’s Proportionate Share shall be recomputed to reflect the enlarged rentable area of the Sublet Premises, and (iv) the Annual Base Subrent payable then and thereafter pursuant to this Sublease for the Expansion Space shall equal the Prevailing Market Rent for the Expansion Space, as determined in accordance with this Section 3(c) above.
(iv) BroadSoft shall accept the Expansion Space in its “as is” broom clean condition, and BroadSoft shall not make any alterations, installations, additions or improvements to the Expansion Space unless BroadSoft complies with Exhibit C and Section 6 of this Sublease.
(v) MIASI shall tender possession of the Expansion Space to BroadSoft on the Expansion Space Anticipated Delivery Date; provided, however, that notwithstanding any other provision in this Sublease or in any notice given by MIASI to BroadSoft pursuant to this Sublease to the contrary, delivery of possession of the Expansion Space to BroadSoft and commencement of BroadSoft’s leasing thereof shall be subject to MIASI’s obtaining possession from any prior subtenant who holds over beyond its sublease expiration date. MIASI shall diligently pursue at its own expense recovery of such space and the delivery of possession to BroadSoft. Provided MIASI did not execute a sublease with a third-party subtenant for the Expansion Space for a period extending beyond the Expansion Space Anticipated Delivery Date, and provided MIASI is diligently pursuing recovery of the Expansion Space (including instituting a lawsuit to recover possession of the Expansion Space, BroadSoft shall have no claim for damages for MIASI’s failure to deliver the Expansion Space to BroadSoft, and subject to Section 3(c)(vi) below, BroadSoft shall commence to pay rent therefor on the date MIASI actually delivers exclusive possession thereof to BroadSoft.
(vi) For purposes hereof, “Prevailing Market Rent” shall mean the then-prevailing fair market value rental rate (determined on a “gross” lease basis) charged to tenants for space in prime leases of comparable size and conditions, in comparable office buildings and locations in the Gaithersburg, Maryland submarket area, taking into account the following: (a) the location, quality and age of the Building; (b) the amenities in the Building available to BroadSoft and the amenities in the surrounding area; (c) the use, location, size and/or floor level(s) of the space in question, including view, elevator lobby exposure, etc.; (d) the definition of Rentable Square Feet (e.g., GWCAR or BOMA); (e) Anything contained the extent of leasehold improvements in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue Expansion Space (other than those paid for by BroadSoft) or to be as expressly set forth in this Lease andprovided, except as set forth in Subparagraph and/or any leasehold improvement allowance; (f) below abatements (including with respect to Annual Base Subrent, Pass-Through Expense Rental and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise parking charges); (g) inclusion or exclusion of its Expansion Option. 32
(f) The Lessor parking charges in rental and the Lessee hereby acknowledge parking ratio offered; (h) lease takeovers/assumptions; (i) term or length of sublease; and agree that (i) any other concession or inducements, non-market real estate commissions and/or relevant terms or conditions in making such Prevailing Market Rent determination. If within thirty (30) days following delivery of BroadSoft’s Expansion Option notice, MIASI and BroadSoft have not mutually agreed on the requirements under this Paragraph 39 Prevailing Market Rent for the re-setting of a new Expansion Space, then within ten (10) year term for days after the entire Building expiration of such thirty (i.e.30) day period, including each party shall give written notice to the Phase I Buildingother setting forth the name and address of a Broker (hereafter defined) selected by such party who has agreed to act in such capacity, to determine the Phase II Building and the Phase III BuildingPrevailing Market Rent. Each broker (“Broker”) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is have at least ten (10) years experience as a real estate broker specializing in commercial office leasing in the Gaithersburg, Maryland submarket area. The cost and six expense of each Broker shall be borne by the party that selected such Broker. If either party shall fail to select a Broker as aforesaid, the Broker selected by the other party shall determine the Prevailing Market Rent. Each Broker shall thereupon independently make his or her determination of the Prevailing Market Rent within twenty (620) months days after the Phase I Commencement Date under this Lease and appointment of the second Broker. If the two Brokers’ determinations are not the same, but the higher of such two values is not more than one hundred ten percent (2nd110%) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes lower of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Datethem, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically Prevailing Market Rent shall be re-set deemed to be the average of the two values. If the higher of such two values is more than one hundred ten percent (110%) of the lower of them, then the two Brokers shall jointly appoint a new third Broker within ten (10) year Term from days after the Phase III Commencement Date(i.e.second of the two determinations described above has been rendered. The cost and expense of the third Broker shall be borne equally by MIASI and BroadSoft. Within twenty (20) days after his or her appointment, the third Broker shall independently make his or her determination of the Prevailing Market Rent and shall select either the determination of MIASI’s Broker or the determination of BroadSoft’s Broker that, in the opinion of the third Broker, is the closest to the third Broker’s determination of the Prevailing Market Rent (and shall be binding upon MIASI and BroadSoft). If MIASI is unable to deliver the Expansion Space within one hundred twenty (120) days after the Expansion Space Anticipated Delivery Date, then BroadSoft may, at its option, terminate this Sublease or any amendment hereto (but solely with respect to the Expansion Space) by delivering written notice to MIASI no later than ten (10) years from that date which is two days after the expiration of such one hundred twenty (2120) years and six (6) months from the Phase I Commencement Date) andday period. In such event, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would neither party shall have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease any further rights or obligations hereunder with respect to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended toSpace, and this Sublease shall become, that date which is continue in full force and effect in accordance with its terms with respect to the day immediately preceding Sublet Premises (but not the tenth (10th) year anniversary date of the Phase IIIExpansion Space).
Appears in 1 contract
Sources: Sublease Agreement (Broadsoft Inc)
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forthFor purposes of this Rider 3, the Lessee shall have the option (the "Expansion Option"), by providing a written notice to the Lessor (the "Expansion Option Election Notice") at any time prior to the second (2nd) anniversary area of the Phase I Commencement Date (such two (2) year period being Building described on Schedule B attached to this Rider is hereinafter referred to as the "Expansion Option Exercise PeriodSpace"). Subject to the remaining provisions of this Rider 3, of requiring Tenant shall have the Lessor to expand option and the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof right (the "Phase III BuildingExpansion Option") for a total Phase I Buildingto lease all, Phase II Building and Phase III Building but not less than all, of three hundred and eight thousand (308,000) the Expansion Space consisting of 11,055 rentable square feet of spacefeet. The Lessor's Improvements with respect Tenant must exercise the Expansion Option, if at all, by delivering written notice to the Phase III Building Landlord (the "Phase III Lessor's ImprovementsExpansion Notice") shall be similar to the Phase II Lessor's Improvementson or before January 1, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date"2004. If the Lessee properly Tenant timely exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion of the Real Property immediately adjacent to the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by with regard to the final day Expansion Space, Landlord and Tenant will in good faith negotiate and enter into an amendment to this Lease within thirty (30) days of Tenant's delivery of the Expansion Option Exercise Period, then Notice reflecting the Lessee's Expansion Option shall automatically cease and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all of that portion addition of the Real Property as shown as Expansion Space to the shaded area on Exhibit "A-6" attached hereto and made Premises with a part hereof (the "Recapture Land"), whereupon the Recapture Land, or such portion thereof as may be so designated by the Lessor, shall be removed from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land.
(b) The annual Minimum Rent for the Phase III Building for the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) of this Lease)December 1, but not exceeding ninety-nine thousand (99,000) square feet of space; 2004, provided, however, such annual Minimum Rent for (i) the Phase III Building rate of Base Rent, the amount of Finish Allowance and other allowances shall be increased commencing based on the first (1st) anniversary then market conditions for comparable office space in comparable buildings in the LBJ/North Dallas market taking into account all relevant factors such as condition and size of the Phase III Commencement Date Expansion Space, length of term, creditworthiness of Tenant, basis for payment of operating expenses and continuing on all other relevant factors (ii) Tenant shall be entitled to four (4) parking spaces for each anniversary date thereafter, pursuant one thousand (4:1000) rentable square feet of such Expansion Space being added to the provisions Premises, of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by which seventy-two percent (272%) per annumshall be located in the Parking Garage and the remainder shall be located on the surface lot (all such parking space shall be at no cost to Tenant). Upon , and in the Lessee's proper exercise event that Landlord is unable to timely deliver the Expansion Space due to the holding over of the existing tenant thereof, then the Commencement Date of the Expansion Option, the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) Space shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before delayed until the date which is twelve (12) months after that the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(e) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only, if the Lessee elects to have the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building Space is delivered by the Lessor to the Lessee on that date which is two (2) years and six (6) months following the Phase I Commencement Date, then the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.eTenant., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
Appears in 1 contract
Expansion Option. (a) The Lessor and the Lessee hereby acknowledge and agree that, subject to the terms and conditions hereinafter set forth, the Lessee shall have the Landlord grants Tenant an option (the "Expansion Option")) to cause the Building to be expanded by between 50,000 and 100,000 square feet (the "Expansion") in accordance with the provisions of this Paragraph 31. If at any time during the first sixteen (16) full calendar months of the term of this Lease, by providing a written notice to Tenant desires the Lessor Expansion, Tenant will notify Landlord in writing of such desire (the "Expansion Option Election Notice"). Tenant's Expansion Notice must (i) at any time be given prior to the second (2nd) anniversary expiration of the Phase I Commencement Date sixteenth (such two (216th) year period being hereinafter referred to as the "Expansion Option Exercise Period"), of requiring the Lessor to expand the Building by constructing an additional ninety-nine thousand (99,000) square feet of space as shown as the shaded area on Exhibit "B-4" attached hereto and made a part hereof (the "Phase III Building") for a total Phase I Building, Phase II Building and Phase III Building of three hundred and eight thousand (308,000) square feet of space. The Lessor's Improvements with respect to the Phase III Building (the "Phase III Lessor's Improvements") shall be similar to the Phase II Lessor's Improvements, but in any event, the Phase III Lessor's Improvements shall comply with all then applicable laws. The actual date upon which the Lessor receives the Lessee's Expansion Option Election Notice shall hereinafter be referred to as the "Expansion Option Notification Date". If the Lessee properly exercises its Expansion Option as hereinafter set forth, then the Lessor shall construct the Phase III Building upon that certain portion full calendar month of the Real Property immediately adjacent to term; (ii) be given before the westerly side wall of the Building as shown on Exhibit "B-4" attached hereto and made a part hereof. If the Lessee fails to provide the Lessor with the Expansion Option Election Notice by the final day termination of the Expansion Option Exercise Periodpursuant to Initials: __________ __________ Landlord Tenant 14 Paragraph 31(b) below; (iii) describe in reasonable detail the Expansion requested by Tenant, then including the Lessee's size in square feet and proposed use of each type of space to be included in the Expansion Option shall automatically cease (such as, for example, 5,000 square feet of office space and terminate and the Lessee shall have no such Expansion Option and thereupon the Lessor shall have the right to recapture and remove from this Lease any or all 60,000 square feet of that portion of the Real Property as shown as the shaded area on Exhibit "A-6" attached hereto and made a part hereof (the "Recapture Land"warehouse/manufacturing space), whereupon the Recapture Landlevel of finish required in each type of space, and any site improvements or such portion thereof as may other special requirements that are to be so designated by included in the Lessor, shall be removed from the applicability of this Lease Expansion; and the Lessor may, thereafter, utilize (iv) call for an Expansion having at least 50,000 square feet and develop such portion of the Recapture Landnot more than 100,000 square feet.
(b) The annual Minimum Rent parties acknowledge that Landlord has an option to purchase a parcel of land consisting of approximately 4.63 acres that is located adjacent to and north of the Land (the "Expansion Area"). If Tenant exercises its Expansion Option, the Expansion will be constructed on the Expansion Area. Such option to purchase the Expansion Area will expire one year from the date on which Landlord closes on its acquisition of the Land (the "Land Acquisition Date"), unless prior to the first anniversary of the Land Acquisition Date, Landlord extends such option for a one-year period by paying an extension payment of $9,148 (the "First Extension Payment"), in which case such option will expire on the second anniversary of the Land Acquisition Date unless, prior to such anniversary, Landlord extends such option for an additional one-year period by paying an additional extension payment of $9,148 (the "Second Extension Payment"), in which case such option will expire on the third anniversary of the Land Acquisition Date. If the "Expansion Amendment" (as defined below) has not then been signed, at least sixty (60) days prior to the first anniversary of the Land Acquisition Date, Landlord will notify Tenant of the date on which such first anniversary will occur and Tenant, if Tenant desires to keep its Expansion Option in effect, must pay to Landlord the amount of the First Extension Payment at least thirty (30) days prior to the first anniversary of the Land Acquisition Date. If Tenant fails to do so, then Tenant's Expansion Option under this Paragraph 31 will terminate. If the Expansion Amendment has not then been signed and Tenant's Expansion Option is still then in effect, at least sixty (60) days prior to the second anniversary of the Land Acquisition Date, Landlord will notify Tenant of the date on which such second anniversary will occur and Tenant, if Tenant desires to keep its Expansion Option in effect, must pay to Landlord the amount of the Second Extension Payment at least thirty (30) days prior to the second anniversary of the Land Acquisition Date. If Tenant fails to do so, then Tenant's Expansion Option under this Paragraph 31 will terminate.
(c) Within two (2) weeks after timely delivery of Tenant's Expansion Notice, Landlord will prepare and deliver to Tenant sketch plans and specifications for the Phase III proposed Expansion and a proposed budget for all costs of its design and construction (including the cost of acquiring the Expansion Area and financing the construction of the Expansion). During the two (2) week period following Landlord's delivery of such sketch plans and specifications and budget, Landlord will cooperate with Tenant to refine such plans and specifications to produce preliminary plans and specifications for the Expansion (the "Preliminary Expansion Plans") that are acceptable to Tenant and of a level of detail similar to the Preliminary Plans for the Building attached hereto as Exhibit "B" and develop a final budget for the Expansion, as shown on the Preliminary Expansion Plans (the "Expansion Budget"). If Tenant fails to approve in writing the Preliminary Expansion Plans and the Expansion Budget within two (2) weeks after Landlord's delivery of the sketch plans and proposed budget, then Tenant will be deemed to have withdrawn its Expansion Notice and the same will have no further force or effect. If Tenant does so approve the Preliminary Expansion Plans and the Expansion Budget, then, within one (1) month thereafter, the parties will execute an amendment to this Lease (the "Expansion Amendment") that provides for the following:
1. Landlord will prepare construction plans and specifications for the Expansion which will be subject to Tenant's review and approval, which will not be unreasonably withheld or delayed and will be limited in scope to confirming that the same conform to the Preliminary Expansion Plans;
2. Landlord will construct the Expansion in accordance with the construction plans and specifications approved by Tenant within a reasonable construction period projected by Landlord at the time the Expansion Amendment is signed (subject to delays caused by force majeure);
3. Upon Substantial Completion of the Expansion, Landlord and Tenant will prepare a punchlist of items in the Expansion requiring completion or correction and Landlord will complete or correct the same within thirty (30) days;
4. Landlord will provide a warranty with respect to the Expansion for a period of one year from its Substantial Completion like the warranty provided with respect to the original Building pursuant to this Lease; and Initials: __________ __________ Landlord Tenant
5. Upon Substantial Completion of the Expansion, (a) the Premises will be deemed amended to include the Expansion Area and the Expansion; (b) the term of this Lease will be extended to be a full ten (10) years from the date of such Substantial Completion (plus, if the date of Substantial Completion is other than the first day of a month, the period from such date to the first day of the next month); (c) the rent for the original Premises will continue on the schedule set forth in Paragraph 2(a) and for the extended portion of the term (i.e., the extension necessary to make the term a full ten (10) years from Substantial Completion of the Expansion) the rent for the original Premises will be payable at the same amount per month as is payable for the original Premises during months 91 through 120, as shown in such schedule (and the rent for the renewal terms, if Tenant should exercise the same, will remain unchanged as to the original Premises);
(d) the rent for the Expansion and Expansion Area for each of the first full thirty (30) months following the Substantial Completion thereof (with proration of any partial month from the Substantial Completion date to the next month) will be equal to one-twelfth (1/12) of the amount obtained by multiplying the total Expansion Budget approved by Tenant by (i) 10.5%, if the Expansion Amendment is signed during the first twelve (12) months following the Phase III Commencement Date (hereinafter defined) shall be Three and 75/100 Dollars ($3.75) per square feet of space contained in the Phase III Building as measured by the Lessor's architect or engineer (and verified by the Lessee) from structural line to "structural line" of the Phase III Building (as defined in Paragraph 5(b) execution of this Lease); (ii) 10.65%, but not exceeding ninety-nine thousand (99,000) square feet of space; provided, however, such annual Minimum Rent for the Phase III Building shall be increased commencing on the first (1st) anniversary of the Phase III Commencement Date and continuing on each anniversary date thereafter, pursuant to the provisions of Paragraph 5(c) above (i.e., the Minimum Rent attributable to the Phase III Building shall be increased by two percent (2%) per annum). Upon the Lessee's proper exercise of if the Expansion Option, Amendment is signed during the entire Term of this 31 Lease for the entire Building (i.e., the Phase I Building, the Phase II Building and the Phase III Building) shall be automatically re-set to be a new ten (10) year Term from the Phase III Commencement Date. Accordingly, the Term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) shall automatically be re-set to be a new ten (10) year Term from the Lessor's substantial completion of the construction of the Phase III Building (the "Phase III Commencement Date") and, therefore, the First Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the tenth (10th) anniversary date of the Phase III Commencement Date and the Second Extension Period, if properly exercised pursuant to the provisions of Paragraph 38 above, shall automatically be deemed to commence upon that date which is the fifteenth (15th) year anniversary date of the Phase III Commencement Date. Once the Lessee exercises its Expansion Option, the exercise thereof may not be revoked, except as provided in Paragraph 39(c) below. The Minimum Rent attributable to the Phase III Building shall be "net, net, net" to the Lessor and, therefore, the Lessee shall be responsible for the payment of all Additional Rent with respect to the Phase III Building.
(c) If the Phase III Commencement Date has not occurred for any reason on or before the date which is second twelve (12) months after following the Expansion Option Notification Date (other than for delays caused by Force Majeure (excluding any delays caused by governmental action or inaction) or delays caused by, or attributable to, the Lessee), the Lessee may, by written notice to Lessor:
(i) terminate this Lease, whereupon this Lease shall so terminate as of a date specified in Lessee's notice and, thereafter, neither the Lessor nor the Lessee shall have any further liability and obligations under this Lease, or
(ii) continue this Lease with respect to the Phase I Building and Phase II Building, in which event (x) the Lessor shall have the right to recapture and remove all or any portion of the Recapture Land from the applicability of this Lease and the Lessor may, thereafter, utilize and develop such portion of the Recapture Land, (y) Paragraph 23(b) shall be deemed omitted from this Lease, and (z) notwithstanding anything contained in Paragraph 38
(a) to the contrary, a successor or assignee of the Lessee may exercise the Extension Options as set forth in this Lease.
(d) The Expansion Option shall be personal to the Lessee and the same shall not be applicable to any successor or assignee of the Lessee (other than a corporate successor or affiliate of the Lessee) and the Lessee's successors or assigns (other than a corporate successor or affiliate of the Lessee) may not exercise the Expansion Option as set forth in this Lease and as permitted under the terms execution of this Lease. The Lessee may exercise its Expansion Option only by serving on the Lessor the Lessee's Expansion Option Election Notice prior to the expiration of the Expansion Option Exercise Period. In the event the Lessee does not timely ; and properly exercise its Expansion Option, then the Expansion Option shall automatically become null and void and of no further force and effect and the Lessee shall no longer have the Expansion Option.
(eiii) Anything contained in this Paragraph 39 to the contrary notwithstanding, the Minimum Rent applicable to the Phase I Building and the Phase II Building shall continue to be as expressly set forth in this Lease and, except as set forth in Subparagraph (f) below and on Exhibit "J" attached to this Lease and made a part hereof, shall not be affected by the Lessee's exercise of its Expansion Option. 32
(f) The Lessor and the Lessee hereby acknowledge and agree that the requirements under this Paragraph 39 for the re-setting of a new ten (10) year term for the entire Building (i.e., including the Phase I Building, the Phase II Building and the Phase III Building) upon the Lessee's exercise of the Expansion Option must be reconciled within the context of the Lessee's two (2) Extension Options of five (5) years each under Paragraph 38 of this Lease. Accordingly, the Lessor and the Lessee hereby acknowledge and agree that, upon the Lessee's exercise of its Expansion Option under this Paragraph 39, then the first five (5) year Extension Period under Paragraph 38 of this Lease shall commence upon the tenth (10th) year anniversary date of the Phase III Commencement Date as opposed to that date which is ten (10) years and six (6) months after the Phase I Commencement Date under this Lease and the second (2nd) five (5) year Extension Period under Paragraph 38 of this Lease shall, therefore, commence upon the fifteenth (15th) year anniversary date of the Phase III Commencement Date as opposed to that date which is fifteen (15) years and six (6) months after the Phase I Commencement Date under this Lease. For purposes of illustration only10.8%, if the Lessee elects to have Expansion Amendment is signed after the Building expanded pursuant to its Expansion Option under this Paragraph 39 and if the Phase III Building is delivered by the Lessor to the Lessee on that date which is two first twenty-four (2) years and six (624) months following the Phase I Commencement Date, then execution of this Lease; and (e) the Term rent for the entire Building Expansion and Expansion Area will increase by 4.75% every thirty (i.e.30) months thereafter, including the Phase I Building, the Phase II Building and the Phase III Building) would automatically be re-set to be a new ten (10) year Term from the Phase III Commencement Date(i.erenewal terms if Tenant exercises its option with respect thereto., ten (10) years from that date which is two (2) years and six (6) months from the Phase I Commencement Date) and, therefore, the Lessee's First Extension Period under Paragraph 38 of this Lease would (if properly exercised by the Lessee as expressly set forth in Paragraph 38 of this Lease) commence on that date which is twelve (12) years and six (6) months following the Phase I Commencement Date as opposed to commencing on what would have otherwise been the original Termination Date under this Lease. Furthermore, anything contained in this Lease to the contrary notwithstanding, upon the Lessee's proper exercise of its Expansion Option as hereinabove set forth, the Termination Date under this Lease shall automatically be extended to, and shall become, that date which is the day immediately preceding the tenth (10th) year anniversary date of the Phase III
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Sources: Lease Agreement (Koala Corp /Co/)