First Extension Option. (a) Tenant shall have the right to extend the Term of this Lease for an additional term of five (5) years commencing on the day following the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that: A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease. (b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis. (a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2 (a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator. (b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below. (c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator. (d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant. (e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
Sources: Office Lease (Hagler Bailly Inc)
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the day following Initial Maturity Date and ending on the expiration First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial Term following requirements are satisfied:
(a) Borrower delivers written irrevocable notice to Lender not more than ninety (90) days and not less than thirty (30) days prior to the Initial Maturity Date advising that Borrower is exercising the First Extension Option;
(b) No Default, Mezzanine Default, Event of this Lease (hereinafter referred to Default or Mezzanine Event of Default exists as of the "Commencement Date date Borrower exercises the First Extension Option and as of the commencement date of the First Extension Term";
(c) If the Interest Rate Cap Agreement is scheduled to mature prior to the First Extended Maturity Date, Borrower shall obtain, deliver and ending on assign the day benefit thereof to Lender not later than one (1) Business Day immediately preceding the fifth anniversary of the Commencement Date first day of the First Extension Term Term, one or more Replacement Interest Rate Cap Agreements from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement shall (such additional term is hereinafter called i) be effective commencing on the "first day of the First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of have a LIBOR strike price equal to the Leased Premises initially demised under this Leaseapplicable Strike Price, and (iii) is have a maturity date not in default under this Lease or the Original Lease as of the time of the giving of earlier than the First Extension Notice and the Commencement Date of the First Extension Term and Extended Maturity Date;
(ivd) Tenant Borrower shall have exercised its right to extend extended the term of the Original Lease Mezzanine Loan to a maturity date not earlier than the First Extended Maturity Date in accordance with the terms of the Mezzanine Loan Agreement;
(e) Both (i) the Additional Extension Conditions shall have been satisfied (except as set forth in clause (h) below), and (ii) substantially all of the 51,519 square feet of space currently leased to Quintiles, Inc. (the "Quintiles Space") has been leased to tenants approved by Lender in its reasonable discretion pursuant to Paragraph 1.1 Leases approved by Lender in its reasonable discretion for a minimum of Exhibit C two (2) years beyond the First Extended Maturity Date, and Lender has received evidence reasonably acceptable to Lender (which evidence shall include tenant estoppel certificates executed by the applicable tenants addressing, among other things, the following matters in form and substance reasonably acceptable to Lender) that (A) such Lease is in full force and effect and no default by the landlord or the tenant is continuing under any such Lease, and (B) such tenants are in occupancy of their demised premises and have commenced paying full unabated Rent; provided, however, that the foregoing condition set forth in this clause (e)(ii) (but not clause (e)(i)) shall be deemed satisfied if, as of the Initial Maturity Date, the Underwritten Debt Service Coverage Ratio (which shall be calculated excluding Rents payable under the Vacant Space Master Lease) is greater than 1.10:1.0;
(f) Borrower executes and delivers to Lender an amendment to this Agreement, reasonably acceptable to Lender in all respects, which confirms the date to which the Initial Maturity Date has been extended (without any other amendments or confirmations);
(g) Borrower reimburses Lender for all costs and expenses reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; and
(h) In the event that the Additional Extension Conditions have not been satisfied prior to the Original Lease.Initial Maturity Date, the following additional terms and conditions shall apply:
(bi) The Annual Base Rent payable by Tenant Borrower shall pay to Landlord during Lender on the Initial Maturity Date, an extension fee equal to three-eighths of one percent (0.375%) of the Outstanding Principal Balance of the Loan;
(ii) the Applicable Interest Rate for the First Extension Term shall be the greater of the Applicable Interest Rate determined in accordance with Section 2.2.3 hereof or the Minimum Extension Interest Rate;
(iiii) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent all Excess Cash Flow during the First Extension Term under this Lease and under the Original Lease shall be determined together such that applied to pay the Annual Base Rent under both leases shall be Outstanding Principal Balance of the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice Loan in accordance with the provisions of Paragraph 1.1, Section 2.6.2(b)(ix); and
(iv) the Annual Base Rent determined under clause Vacant Space Master Lease shall be in full force and effect and shall demise the Alaris Space to the Operating Partnership in accordance with the terms and conditions of Section 3.1.21 (ia) of Paragraph 1. I and (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitratorhereof.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the day following Initial Maturity Date and ending on the expiration First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial Term following requirements are satisfied:
(a) Borrower delivers written irrevocable notice to Lender not more than ninety (90) days and not less than thirty (30) days prior to the Initial Maturity Date advising that Borrower is exercising the First Extension Option;
(b) No Default, Mezzanine Default, Event of this Lease (hereinafter referred to Default or Mezzanine Event of Default exists as of the "Commencement Date date Borrower exercises the First Extension Option and as of the commencement date of the First Extension Term";
(c) If the Interest Rate Cap Agreement is scheduled to mature prior to the First Extended Maturity Date, Borrower shall obtain, deliver and ending on assign the day benefit thereof to Lender not later than one (1) Business Day immediately preceding the fifth anniversary of the Commencement Date first day of the First Extension Term Term, one or more Replacement Interest Rate Cap Agreements from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement shall (such additional term is hereinafter called i) be effective commencing on the "first day of the First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of have a LIBOR strike price equal to the Leased Premises initially demised under this Leaseapplicable Strike Price, and (iii) is have a maturity date not in default under this Lease or the Original Lease as of the time of the giving of earlier than the First Extension Notice and the Commencement Date of the First Extension Term and Extended Maturity Date;
(ivd) Tenant Borrower shall have exercised its right to extend extended the term of the Original Lease pursuant Mezzanine Loan to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during a maturity date not earlier than the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Extended Maturity Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord terms of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.Mezzanine Loan Agreement;
(e) In the event Tenant initiates the aforesaid arbitration process Borrower executes and as of delivers to Lender an amendment to this Agreement, reasonably acceptable to Lender in all respects, which confirms the date of expiration of to which the initial Term of this Lease Initial Maturity Date has been extended (without any other amendments or confirmations); and
(f) Borrower reimburses Lender for all costs and expenses reasonably incurred by Lender in processing the amount of fair market rent for the First Extension Term has not been determinedextension request, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1including, without limitation, reasonable legal fees and expenses.
Appears in 1 contract
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term Maturity Date from the Initial Maturity Date to the First Extended Maturity Date (the “First Extension Option”), subject to Borrower’s satisfaction of this Lease the following conditions:
(i) Borrower shall give Administrative Agent written notice of Borrower’s request for an additional extension of the Maturity Date not earlier than ninety (90) days, nor later than forty-five (45) days, prior to the Initial Maturity;
(ii) As of the date of such notice, and as of the Initial Maturity Date, there shall exist no Default or Potential Default (provided that Borrower shall have an opportunity to cure such Potential Default prior to the Initial Maturity Date to the extent of applicable cure periods under this Agreement or the applicable Loan Document);
(iii) At Administrative Agent’s request, Borrower shall have caused to be issued to Lenders, at Borrower’s sole cost and expense, appropriate endorsements to the Title Policy which confirm the existence and priority of the Liens securing the Obligations in connection with the requested extension;
(iv) There shall have been no change in the financial condition of Borrower, or in the condition of the Property from that which existed on the Effective Date, which change, as determined by Administrative Agent in its reasonable discretion, has a Material Adverse Effect;
(v) The Loan-to-Value Percentage of the Property, based upon a new Appraisal commissioned by Administrative Agent at Borrower’s sole cost and expense and with a valuation date within sixty (60) days of the Initial Maturity Date, shall not exceed the Maximum Loan-to-Value Percentage;
(vi) The Net Operating Income from the Property shall be sufficient to yield a Debt Service Coverage Ratio of not less than 1.25:1.00 as of the Initial Maturity Date;
(vii) Borrower shall have paid to Administrative Agent, for the ratable benefit of Lenders, an extension fee in an amount equal to fifteen hundredths of one percent (0.15%) of Aggregate Commitment as of the Initial Maturity Date; and
(viii) The term of five (5) years commencing on the day following Mezzanine Loan shall be concurrently extended; provided, if all other conditions to the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date exercise of the First Extension Term"Option in this Section 2.6(a) and ending have been satisfied as of the Initial Maturity Date, then Mezzanine Borrower shall be permitted to repay the Mezzanine Loan on the day preceding Initial Maturity Date. If so repaid, the fifth anniversary of the Commencement Date of the First Extension Term foregoing condition in this clause (such additional term is hereinafter called the "First Extension Term"viii) provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) monthsdeemed waived by Administrative Agent. Notwithstanding the foregoing, but not more than twelve (12) months, prior to Borrower shall have the expiration date of the initial Term of this Lease; and
B. Tenant right (i) is to repay principal outstanding under the TenantLoan, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary affirmatively elect to cancel any undisbursed portion of the Commencement Date Aggregate Commitment, or (iii) any combination thereof, in such amount as may be required to reduce the Aggregate Commitment, as applicable, pursuant to this Section 2.6(a), to an amount such that Borrower is in compliance with subsections (v) and (vi) above. Any repayment of principal or cancellation of commitment pursuant to this Section 2.6(a) shall reduce the First Extension TermAggregate Commitment dollar for dollar and any sums repaid may not be reborrowed. Fair market rent shall be determined Except as modified by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrarythis Section 2.6(a), the Annual Base Rent during the First Extension Term under terms and conditions of this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, Agreement and the fees other Loan Documents shall remain unmodified and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) belowfull force and effect.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the day following Initial Maturity Date and ending on the expiration First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial Term following requirements are satisfied:
(a) Borrower delivers written irrevocable notice to Lender not more than ninety (90) days and not less than thirty (30) days prior to the Initial Maturity Date advising that Borrower is exercising the First Extension Option;
(b) No Default, Mortgage Loan Default, Event of this Lease (hereinafter referred to Default or Mortgage Loan Event of Default exists as of the "Commencement Date date Borrower exercises the First Extension Option and as of the commencement date of the First Extension Term";
(c) If the Interest Rate Cap Agreement is scheduled to mature prior to the First Extended Maturity Date, Borrower shall obtain, deliver and ending on assign the day benefit thereof to Lender not later than one (1) Business Day immediately preceding the fifth anniversary of the Commencement Date first day of the First Extension Term Term, one or more Replacement Interest Rate Cap Agreements from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement shall (such additional term is hereinafter called i) be effective commencing on the "first day of the First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of have a LIBOR strike price equal to the Leased Premises initially demised under this Leaseapplicable Strike Price, and (iii) is have a maturity date not in default under this Lease or the Original Lease as of the time of the giving of earlier than the First Extension Notice and the Commencement Date of the First Extension Term and Extended Maturity Date;
(ivd) Tenant Borrower shall have exercised its right to extend extended the term of the Original Lease pursuant Mortgage Loan, if the Mortgage Loan is still outstanding, to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during a maturity date not earlier than the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Extended Maturity Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord terms of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.Mortgage Loan Agreement;
(e) In the event Tenant initiates the aforesaid arbitration process Borrower executes and as of delivers to Lender an amendment to this Agreement, reasonably acceptable to Lender in all respects, which confirms the date of expiration of to which the initial Term of this Lease Initial Maturity Date has been extended (without any other amendments or confirmations); and
(f) Borrower reimburses Lender for all costs and expenses reasonably incurred by Lender in processing the amount of fair market rent for the First Extension Term has not been determinedextension request, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1including, without limitation, reasonable legal fees and expenses.
Appears in 1 contract
First Extension Option. (a) Tenant shall have the right option to extend the Term of this Lease (the “First Extension Option”) for an one additional term of five (5) years commencing (the “First Extension Period”), upon the terms and conditions hereinafter set forth:
(a) If the First Extension Option is exercised, then the Base Rent per annum for such First Extension Period (the “First Option Rent”) shall be an amount equal to the Fair Market Rental Value (as defined hereinafter) for the Premises as of the commencement of the First Extension Option for such First Extension Period.
(b) The First Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this Section 51.1(b).
(i) If Tenant wishes to exercise the First Extension Option, Tenant must, on or before the day following date occurring twelve (12) months before the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to before the expiration date of the initial Term of this Lease; and
B. Tenant (i) that is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to before the expiration of the initial Term), but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to exercise the First Extension TermOption by delivering written notice (the “First Exercise Notice”) to Landlord. After Landlord receives such notice If Tenant timely and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contraryproperly exercises its First Extension Option, the Annual Base Rent during Term shall be extended for the First Extension Term under this Lease Period upon all of the terms and under conditions set forth in the Original Lease Lease, as amended, except that the Base Rent for the First Extension Period shall be determined together such that as provided in Section 51.1(a) and Tenant shall have no further options to extend the Annual Base Rent under both leases shall be Term except for the same amount on a per square foot basisSecond Extension Option.
(aii) In the event If Tenant gives fails to deliver a timely First Exercise Notice, Tenant shall be considered to have elected not to exercise the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2Option..
(ac) for It is understood and agreed that the appointment First Extension Option hereby granted is personal to the initially named Tenant and is not transferable except to a Permitted Transferee in connection with an assignment of a third arbitrator Tenant’s entire interest in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitratorthis Lease. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment any assignment or subletting of the second arbitratorPremises or any part thereof (other than to a Permitted Transferee), the third arbitrator First Extension Option shall automatically terminate and shall thereafter be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself null and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitratorvoid.
(d) Each Tenant’s exercise of the arbitrators selected as herein provided First Extension Option shall, if Landlord so elects in its absolute discretion, be ineffective in the event that (i) an Event of Default by Tenant remains uncured at the time of delivery of the First Exercise Notice or at the commencement of the First Extension Period, or (ii) Tenant shall have at least ten (10) years experience in reduced the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as size of the date of expiration Premises below the size of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined Premises by Landlord to be the fair market rent under Paragraph 1.1written agreement with Landlord.
Appears in 1 contract
First Extension Option. (a) Tenant shall have the right to Borrower may, at its option, extend the Term of this Lease for an additional term of five the then outstanding principal amount for a period of one (51) years commencing on year to the day following the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date of the First Extension Term") and ending on the day preceding the fifth first anniversary of the Commencement original Maturity Date of (the First Extension Term (such additional term is hereinafter called applicable period being, the "First Extension TermPeriod") provided that), subject to the satisfaction of the following conditions:
A. Tenant (a) Borrower shall give Landlord notice notify (hereinafter called the "First Extension Notice") Administrative Agent of its election Borrower's exercise of such option between sixty (60) and one hundred twenty (120) days prior to extend the term original Maturity Date;
(b) No Potential Default or Event of this LeaseDefault has occurred and is continuing as of the date of the First Extension Notice, as of the original Maturity Date or would result from the extension of the maturity of the Loans for the First Extension Period;
(c) Not less than 90% of the rentable area of the Project is leased to tenants under Approved Leases, which notice shall be given at least eleven tenants are in occupancy of the premises demised thereunder and have commenced paying rent thereunder and none of which tenants is in material default under its Approved Lease;
(11d) monthsThe Loan to Value Ratio as of the original Maturity Date does not exceed 50%, but based on a new Appraisal obtained by Administrative Agent not more than twelve ninety (1290) months, days prior to the expiration date of the initial Term of this Lease; andoriginal Maturity Date, such Appraisal to be at Borrower's expense and reasonably satisfactory to Administrative Agent in all respects;
B. Tenant (ie) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease The Debt Service Coverage Ratio as of the end of the calendar quarter most recently ended on the original Maturity Date shall be equal to or greater than 1.50:1.00;
(f) If the Hedge Agreement in effect at the time of the Borrower's giving of the First Extension Notice and is scheduled to mature or expire prior to the Commencement Date end of the First Extension Term and (iv) Tenant Period, Borrower shall have exercised its right obtained and delivered to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C Administrative Agent not later than ten (10) Business Days prior to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during first day of the First Extension Term Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the greater beginning of the First Extension Period and shall have a maturity date not earlier than the end of the First Extension Period;
(g) The expiration date of any Collateral Letters of Credit, if still outstanding pursuant to the terms of this Agreement or any other Loan Document, shall be extended to a date which is thirty (30) days beyond the end of the First Extension Period;
(h) Current financial statements regarding Borrower (dated not earlier than ninety (90) days prior to the First Extension Notice) and all other financial statements and other information as may be required under this Agreement and the Loan Documents regarding Borrower and the Project shall have been submitted promptly to Administrative Agent;
(i) In the reasonable opinion of Administrative Agent, there shall not have occurred any Material Adverse Effect;
(j) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including appraisal fees and legal fees; all such costs and expenses shall be due and payable upon demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;
(k) Not later than the original Maturity Date, (i) the product that results from multiplying ninety-five percent (95%) extension shall have been documented to the Lenders' satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the fair market rent for Guarantors of reaffirmations of their respective obligations under the Leased Premises or Guaranty and (ii) Administrative Agent shall have been provided with an updated title report and judgment and lien searches, and appropriate title insurance endorsements shall have been issued as required by Administrative Agent; and
(l) Borrower shall pay to Administrative Agent (for the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary benefit of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice Lenders in accordance with their proportionate shares) on the original Maturity Date a non-refundable extension fee equal to 0.15% of an amount equal to the outstanding principal amount at such time. Any such extension shall be otherwise subject to all of the other terms and provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, Agreement and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) belowother Loan Documents.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the first (1st) day following the expiration Initial Maturity Date and ending on the First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial following conditions are satisfied:
(a) no monetary Default nor any Event of Default shall have occurred and be continuing at the time the First Extension Option is exercised or on the date that the First Extension Term commences;
(b) Borrower shall notify Lender of this Lease its irrevocable election to exercise the First Extension Option not earlier than six (hereinafter referred 6) months, and not later than thirty (30) days, prior to as the "Commencement Date Initial Maturity Date;
(c) if the Interest Rate Cap Agreement is scheduled to mature prior to the First Extended Maturity Date, Borrower shall obtain and deliver to Lender not later than one (1) Business Day immediately preceding the first (1st) day of the First Extension Term", a Replacement Interest Rate Cap Agreement (or extension of the existing Interest Rate Cap Agreement) and ending from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement (or extension of the existing Interest Rate Cap Agreement) shall (i) be effective commencing on the first (1st) day of the First Extension Term, (ii) have a LIBOR strike price equal to the applicable Strike Price, and (iii) have a maturity date not earlier than the First Extended Maturity Date;
(d) not later than one (1) Business Day immediately preceding the fifth anniversary first (1st) day of the Commencement Date First Extension Term, all accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sums then due to Lender hereunder or under any of the other Loan Documents shall have been paid in full;
(e) not later than one (1) Business Day immediately preceding the first (1st) day of the First Extension Term, Borrower shall have deposited with Lender in immediately available funds, for deposit by Lender into the Interest Reserve Account, an amount equal to the difference between (i) the aggregate amount of Debt Service that Lender reasonably estimates will be due and payable during the First Extension Term calculated at an interest rate equal to the then applicable Strike Price plus the then applicable Spread, less (ii) the amount on deposit in the Interest Reserve Fund as of the day immediately preceding the first (1st) day of the First Extension Term, which amount thereafter shall constitute a part of the Interest Reserve Fund and shall be held and disbursed by Lender as set forth in Section 7.2 hereof;
(f) not later than one (1) Business Day immediately preceding the first (1st) day of the First Extension Term, Borrower shall have made a deposit to the Tax and Insurance Escrow Fund to cover Taxes and Insurance Premiums coming due following the first (1st) day of the First Extension Term (such additional term is hereinafter called through the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date duration of the First Extension Term. Fair market rent , based on the same criteria used by Lender to determine the amount deposited to the Tax and Insurance Escrow Fund on the Closing Date, which amount thereafter shall constitute a part of the Tax and Insurance Escrow Fund and shall be determined held and disbursed by Landlord, subject Lender as set forth in Section 7.1 hereof;
(g) Borrower shall have delivered to Lender a “110.5A” (extension of maturity date) endorsement to the right of Tenant Title Insurance Policy;
(h) Borrower shall have paid to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen Lender an extension fee equal to one percent (151.0%) months prior to the expiration of the initial Term, but in no event more Outstanding Principal Balance not later than sixteen one (161) months prior to Business Day immediately preceding the expiration first (1st) day of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.; and
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is Borrower shall have reimbursed Lender for all costs reasonably incurred by Lender in processing the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b)extension request, then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rentincluding, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlordwithout limitation, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the reasonable legal fees and expenses; provided, however, that in no event shall Borrower be required to pay any such fees, costs or expenses in excess of the original arbitrator appointed by or for such party, and all other expenses Five Thousand Dollars (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below$5,000).
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
First Extension Option. (a) Tenant shall have At the right to extend the Term written request of this Lease for an additional term of five (5) years commencing on the day following the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given Borrower made at least eleven thirty (1130) months, but not more than twelve ninety (1290) months, days prior to the expiration date Initial Maturity Date, the Maturity Date shall be extended to the one-year anniversary of the initial Term of this Lease; andInitial Maturity Date (the "First Extended Maturity Date") provided that the following conditions are satisfied:
B. Tenant (i) is Administrative Agent shall have received evidence indicating whether the Tenant, or a subsidiary, parent or Affiliate Improvements on each of the TenantProperties or any part thereof are or will be located within a one hundred year flood plain or other area identified by Administrative Agent has having high or moderate risk of flooding or identified as a special flood hazard area as defined by the Federal Emergency Management Agency, originally named hereinand, if so, a flood notification form signed by Borrower and evidence that the flood insurance required by Article VII of this Agreement is in place for the Improvements and contents, if applicable, all in form, substance and amount satisfactory to Administrative Agent and the Lenders;
(ii) actually occupies all Borrower has delivered to Administrative Agent evidence acceptable to Administrative Agent that, as of the Leased Premises initially demised under this LeaseInitial Maturity Date, that the outstanding balance of the Loans will not exceed the Availability Amount based on the then existing applicable metrics (using an updated appraisal if required by Administrative Agent) and Debt Service Coverage Ratio calculations); provided Borrower may pay down the Loan by such amount to ensure compliance with the foregoing;
(iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on On or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rentInitial Maturity Date, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice Administrative Agent shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenanthave received, on behalf of itself and Landlord and on prior notice the Lenders, an extension fee in an amount equal to Landlord, within twenty-five fifteen one hundredths percent (250.15%) business days after the appointment of the second arbitratorAggregate Commitment;
(iv) No Default or Unmatured Default shall have occurred and be continuing on the Initial Maturity Date;
(v) All representations and warranties made hereunder or under any of the other Loan Documents shall be true and correct in all material respects as of the Initial Maturity Date, may request except (A) to the extent such appointment representation and warranty is made as of a specified date, in which case such representation and warranty shall have been true and correct as of such specified date, or (B) as to any immaterial representations which Lender in good faith determines would not have a material adverse effect on the Property, the Borrower or the Guarantor if not true and correct in all material respects (provided the foregoing shall in no event apply to intentional misrepresentations);
(vi) Administrative Agent has received satisfactory documentation evidencing the extension executed by Borrower and consented to by the American Arbitration Association (or any organization successor thereto) Guarantor, and Borrower shall have paid all of Administrative Agent's costs and expenses in connection with such extension in accordance with Section 10.03; SMRH:479612560.8 38
(vii) Guarantor shall have executed a reaffirmation of its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, Guaranty and a consent to the General District Courtextension in form and content reasonably acceptable to Administrative Agent and Guarantor (provided, Arlington Countyhowever, Virginia (that it is the intent and agreement of the parties hereto and of the Guarantor that its Repayment Guaranty shall continue in full force and effect whether or not any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitratorreaffirmation is obtained).
(bviii) Each party Borrower shall pay have paid all costs and expenses of Administrative Agent in connection with the extension of the Loan (including, without limitation, reasonable fees and expenses of counsel);
(ix) Administrative Agent shall have been provided with an updated title report, at Borrower's sole cost and expense, covering the original arbitrator appointed by or for such partyProperties, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately appropriate title endorsements requested by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator Administrative Agent (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.have been issued, as reasonably requested by Administrative Agent;
(ex) In the event Tenant initiates the aforesaid arbitration process Borrower shall have delivered to Administrative Agent a current Borrowing Base Certificate; and
(xi) Borrower and Guarantor shall execute such additional documentation as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord is reasonably satisfactory to be the fair market rent under Paragraph 1.1Administrative Agent with respect to such extension.
Appears in 1 contract
Sources: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
First Extension Option. (a) Tenant shall have the right option to extend the Term of this Lease (the "First Extension Option") for an one additional term of five (5) years commencing on (the day following "First Extension Period"), upon the expiration terms and conditions hereinafter set forth:
(a) If the First Extension Option is exercised, then the Basic Annual Rent per annum for such First Extension Period (the "First Option Rent") shall be equal to 95% of the initial Term Fair Market Rental Value (as defined hereinafter) for the Premises as of this Lease (hereinafter referred to as the "Commencement Date commencement of the First Extension Term") and ending on Option for such First Extension Period; provided, however, that the day preceding First Option Rent shall in no event be less than the fifth anniversary of Basic Annual Rent scheduled to be paid during the Commencement Date year immediately prior to the commencement of the First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original LeasePeriod.
(b) The Annual Base Rent payable First Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this subsection 41.1(b).
(i) If Tenant wishes to Landlord during exercise the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial TermOption, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Termmust, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten six (106) business days after Tenant has been notified by Landlord months before the expiration of the fair market rentSecond Extension Term (but not before the date that is nine (9) months before the expiration of the Second Extension Term), exercise the First Extension Option by delivering written notice (the "First Exercise Notice") to Landlord. If Tenant timely and properly exercises its First Extension Option, the Lease Term shall be extended for the First Extension Period upon all of the terms and conditions set forth in the Lease, as amended, except that the rent for the First Extension Period shall be as provided in subsection 41.1(a) and Tenant shall have no further options to extend the Lease Term except for the Second Extension Option.
(ii) If Tenant fails to deliver a timely First Exercise Notice, Tenant may initiate shall be considered to have elected not to exercise the arbitration provided for herein by giving notice to First Extension Option.
(c) It is understood and agreed that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice First Extension Option hereby granted is personal to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator is not transferable except in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of connection with a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitratorPermitted Assignment. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment any assignment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within Lease (other than a further period of five Permitted Assignment) or subletting (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the partiesthan a Permitted Sublease) of the arbitration Premises or any part thereof, the First Extension Option shall automatically terminate and shall thereafter be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, null and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitratorvoid.
(d) Each Tenant's exercise of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determinedOption shall, if Landlord so elects in its absolute discretion, be ineffective in the event that a Default by Tenant shall pay remains uncured at the amount determined by Landlord to be time of delivery of the fair market rent under Paragraph 1.1First Exercise Notice or at the commencement of the First Extension Period.
Appears in 1 contract
Sources: Lease (Celera CORP)
First Extension Option. (a) Tenant shall have the right option to extend the Term of this Lease (the "First Extension Option") for an one additional term of five three (53) years commencing on (the day following "First Extension Period"), upon the expiration terms and conditions hereinafter set forth:
(a) If the First Extension Option is exercised, then the Base Rent per annum for such First Extension Period (the "First Option Rent") shall be the Fair Market Rental Value (as defined hereinafter) for the Premises (or if Tenant elects a Partial Renewal pursuant to Section 51.5, the Renewal Space) as of the initial Term of this Lease (hereinafter referred to as the "Commencement Date commencement of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the Option for such First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original LeasePeriod.
(b) The Annual Base Rent payable First Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this subsection 51.1(b).
(i) If Tenant wishes to Landlord during exercise the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial TermOption, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Termmust, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten nine (109) business days after Tenant has been notified by Landlord months before the expiration of the fair market rentinitial Lease Term (but not before the date that is twelve (12) months before the expiration of the Initial Lease Term), exercise the First Extension Option by delivering written notice (the "First Exercise Notice") to Landlord. If Tenant timely and properly exercises its First Extension Option, the Lease Term shall be extended for the First Extension Period upon all of the terms and conditions set forth in the Lease, as amended, except that the rent for the First Extension Period shall be as provided in subsection 51.1(a) and Tenant shall have no further options to extend the Lease Term except for the Second Extension Option.
(ii) If Tenant fails to deliver a timely First Exercise Notice, Tenant may initiate shall be considered to have elected not to exercise the arbitration provided for herein by giving notice First Extension Option.
(c) It is understood and agreed that the First Extension Option hereby granted is personal to that effect Tenant and is not transferable except to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address Permitted Transferee in connection with an assignment of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator entire interest in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitratorLease. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment any assignment or subletting of the second arbitratorPremises or any part thereof (other than to a Permitted Transferee), the third arbitrator First Extension Option shall automatically terminate and shall thereafter be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself null and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitratorvoid.
(d) Each Tenant's exercise of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determinedOption shall, if Landlord so elects in its absolute discretion, be ineffective in the event that Monetary Default by Tenant shall pay remains uncured at the amount determined by Landlord to be time of delivery of the fair market rent under Paragraph 1.1First Exercise Notice or at the commencement of the First Extension Period.
Appears in 1 contract
Sources: Lease Agreement (Shutterfly Inc)
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five the Loan from the Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the first (1st) day following the expiration Initial Maturity Date and ending on the First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial following conditions are satisfied or waived by Lender in writing:
(a) no monetary Default nor any Event of Default shall have occurred and be continuing at the time the First Extension Option is exercised or on the date that the First Extension Term commences;
(b) Borrower shall notify Lender in writing of this Lease its irrevocable election to exercise the First Extension Option no less than ninety (hereinafter referred 90) days prior to as the "Commencement Date Initial Maturity Date;
(c) not later than one (1) Business Day immediately preceding the first (1st) day of the First Extension Term", all accrued and unpaid interest (excluding Contingent Interest due under the Contingent Interest Promissory Note) and ending on the day preceding the fifth anniversary any unpaid or unreimbursed amounts in respect of the Commencement Date Loan and any other sums then due to Lender hereunder or under any of the First Extension Term other Loan Documents shall have been paid in full;
(such additional term is hereinafter called d) Borrower shall have deposited into the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") Interest Reserve Account an amount equal to Lender’s reasonable estimate of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) monthsmonths of estimated Monthly Interest Payments, prior to as calculated based on a five (5) year 30-day LIBOR forward curve as reported by Bloomberg on the expiration date of such calculation (the initial Term of this Lease; and
B. Tenant “Extension Interest Reserve Replenishment Amount”), no later than fifteen (i15) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period days immediately preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date first (1st) day of the First Extension Term. Fair market rent , which Extension Interest Reserve Replenishment Amount shall be determined applied by Landlord, subject Lender in accordance with Section 7.2.2 hereof;
(e) Borrower shall have deposited into the Tax and Insurance Escrow Account an amount equal to Lender’s reasonable estimate of twelve (12) months of Taxes and Insurance Premiums payable with respect to the right of Tenant to arbitrate Property (the amount of fair market rent as hereinafter provided. At least “Extension Tax and Insurance Reserve Replenishment Amount”) not later than fifteen (15) months prior to days immediately preceding the expiration first (1st) day of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice , which Extension Tax and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease Insurance Reserve Replenishment Amount shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice applied by Lender in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2Section 7.1 hereof;
(af) for the appointment Borrower shall have delivered to Lender a “110.5A” (extension of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10maturity date) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, endorsement to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.Title Insurance Policy; and
(bg) Each party Borrower shall pay have reimbursed Lender for all costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; provided, however, that in no event shall Borrower be required to pay any such fees, costs or expenses in excess of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below$20,000.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
Appears in 1 contract
First Extension Option. (a) Tenant shall have the right option to extend the Term of this Lease (the “First Extension Option”) with respect to the Premises for an one additional term of five (5) years commencing on (the day following “First Extension Period”), upon the expiration terms and conditions hereinafter set forth:
(a) If the First Extension Option is exercised, then the Base Rent per annum for such First Extension Period shall be an amount equal to the Fair Market Rental Value (as defined hereinafter) as of the initial Term of this Lease (hereinafter referred to as the "Commencement Date commencement of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the Option for such First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original LeasePeriod.
(b) The Annual Base Rent payable First Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this Section 51.2(b).
(i) If Tenant wishes to Landlord during exercise the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial TermOption, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Termmust, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten nine (109) business days after Tenant has been notified by Landlord months before the expiration of the fair market rentinitial Lease Term (but not before the date that is twelve (12) months before the expiration of the initial Lease Term), exercise the First Extension Option by delivering written notice (the “First Option Exercise Notice”) to Landlord. If Tenant timely and properly exercises its First Extension Option, the Lease Term shall be extended for the First Extension Period upon all of the terms and conditions set forth in the Lease, as amended, except that the Base Rent for the First Extension Period shall be as provided in Section 51.2(a) and Tenant shall have no further options to extend the Lease Term except for the Second Extension Option and Third Extension Option.
(ii) If Tenant fails to deliver a timely First Option Exercise Notice, Tenant may initiate shall be considered to have elected not to exercise the arbitration provided for herein by giving notice to First Extension Option.
(c) It is understood and agreed that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice First Extension Option hereby granted is personal to Tenant specifying the name and address is not transferable except to a Permitted Transferee in connection with an assignment of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator ▇▇▇▇▇▇'s entire interest in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitratorLease. In the event of their being unable any assignment of this Lease (other than to agree upon such appointment within fifteen (15) business days after the appointment a Permitted Transferee in connection with an assignment of the second arbitratorTenant’s entire interest in this Lease), the third arbitrator First Extension Option shall automatically terminate and shall thereafter be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself null and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginiavoid. In addition, the third arbitrator (if any) shall be an independent party Tenant may not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for exercise the First Extension Term has not been determinedOption, and any attempted exercise of the First Extension Option shall be ineffective, if at the time Tenant shall pay delivers the amount determined by Landlord First Option Exercise Notice the Subletting Threshold (as defined below) is exceeded. As used herein, “Subletting Threshold” means subleasing of forty-five percent (45%) or more of the Premises(excluding subleases to be Permitted Transferees), either in a single transaction or, in the fair market rent under Paragraph 1.1aggregate, following a series of transactions, for a term or terms expiring during the last year of the Term.
Appears in 1 contract
Sources: Lease Agreement (Penumbra Inc)
First Extension Option. (a) Tenant shall have At the right to extend the Term written request of this Lease for an additional term of five (5) years commencing on the day following the expiration of the initial Term of this Lease (hereinafter referred to as the "Commencement Date of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given Borrower made at least eleven thirty (1130) months, but not more than twelve ninety (1290) months, days prior to the expiration date Initial Maturity Date, the Maturity Date shall be extended to the one-year anniversary of the initial Term of this Lease; andInitial Maturity Date (the “First Extended Maturity Date”) provided that the following conditions are satisfied:
B. Tenant (i) is Administrative Agent shall have received evidence indicating whether the Tenant, or a subsidiary, parent or Affiliate Improvements on each of the TenantProperties or any part thereof are or will be located within a one hundred year flood plain or other area identified by Administrative Agent has having high or moderate risk of flooding or identified as a special flood hazard area as defined by the Federal Emergency Management Agency, originally named hereinand, if so, a flood notification form signed by Borrower and evidence that the flood insurance required by Article VII of this Agreement is in place for the Improvements and contents, if applicable, all in form, substance and amount satisfactory to Administrative Agent and the Lenders;
(ii) actually occupies all Borrower has delivered to Administrative Agent evidence acceptable to Administrative Agent that, as of the Leased Premises initially demised under this LeaseInitial Maturity Date, that the outstanding balance of the Loans will not exceed the Availability Amount based on the then existing applicable metrics (using an updated appraisal if required by Administrative Agent) and Debt Service Coverage Ratio calculations); provided Borrower may pay down the Loan by such amount to ensure compliance with the foregoing;
(iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original Lease.
(b) The Annual Base Rent payable by Tenant to Landlord during the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on On or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rentInitial Maturity Date, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice Administrative Agent shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenanthave received, on behalf of itself and Landlord and on prior notice the Lenders, an extension fee in an amount equal to Landlord, within twenty-five fifteen one hundredths percent (250.15%) business days after the appointment of the second arbitratorAggregate Commitment;
(iv) No Default or Unmatured Default shall have occurred and be continuing on the Initial Maturity Date;
(v) All representations and warranties made hereunder or under any of the other Loan Documents shall be true and correct in all material respects as of the Initial Maturity Date, may request except (A) to the extent such appointment representation and warranty is made as of a specified date, in which case such representation and warranty shall have been true and correct as of such specified date, or (B) as to any immaterial representations which Administrative Agent in good faith determines would not have a material adverse effect on the Property, Borrower or Guarantor if not true and correct in all material respects (provided the foregoing shall in no event apply to intentional misrepresentations);
(vi) Administrative Agent has received satisfactory documentation evidencing the extension executed by the American Arbitration Association (or any organization successor thereto) Borrower and consented to by Guarantor, and Borrower shall have paid all of Administrative Agent’s costs and expenses in connection with such extension in accordance with its rules then prevailing or if Section 10.03;
(vii) Guarantor shall have executed a reaffirmation of the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, Repayment Guaranty and a consent to the General District Courtextension in form and content reasonably acceptable to Administrative Agent and Guarantor (provided, Arlington Countyhowever, Virginia (that it is the intent and agreement of the parties hereto and of the Guarantor that its Repayment Guaranty shall continue in full force and effect whether or not any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitratorreaffirmation is obtained).
(bviii) Each party Borrower shall pay have paid all costs and expenses of Administrative Agent in connection with the extension of the Loan (including, without limitation, reasonable fees and expenses of counsel);
(ix) Administrative Agent shall have been provided with an updated title report, at Borrower’s sole cost and expense, covering the original arbitrator appointed by or for such partyProperties, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately appropriate title endorsements requested by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator Administrative Agent (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.have been issued, as reasonably requested by Administrative Agent;
(ex) In the event Tenant initiates the aforesaid arbitration process Borrower shall have delivered to Administrative Agent a current Borrowing Base Certificate; and
(xi) Borrower and Guarantor shall execute such additional documentation as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord is reasonably satisfactory to be the fair market rent under Paragraph 1.1Administrative Agent with respect to such extension.
Appears in 1 contract
Sources: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
First Extension Option. (a) Tenant Borrower shall have the right to extend the Term of this Lease for an additional term of five Initial Maturity Date to the First Extended Maturity Date (5) years the “First Extension Option”; and the period commencing on the day following Initial Maturity Date and ending on the expiration First Extended Maturity Date being referred to herein as the “First Extension Term”), provided that all of the initial Term following requirements are satisfied:
(a) Borrower delivers written irrevocable notice to Lender not more than ninety (90) days and not less than thirty (30) days prior to the Initial Maturity Date advising that Borrower is exercising the First Extension Option;
(b) No Default, Mortgage Loan Default, Event of this Lease (hereinafter referred to Default or Mortgage Loan Event of Default exists as of the "Commencement Date date Borrower exercises the First Extension Option and as of the commencement date of the First Extension Term";
(c) If the Interest Rate Cap Agreement is scheduled to mature prior to the First Extended Maturity Date, Borrower shall obtain, deliver and ending on assign the day benefit thereof to Lender not later than one (1) Business Day immediately preceding the fifth anniversary of the Commencement Date first day of the First Extension Term Term, one or more Replacement Interest Rate Cap Agreements from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement shall (such additional term is hereinafter called i) be effective commencing on the "first day of the First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of have a LIBOR strike price equal to the Leased Premises initially demised under this Leaseapplicable Strike Price, and (iii) is have a maturity date not in default under this Lease or the Original Lease as of the time of the giving of earlier than the First Extension Notice and the Commencement Date of the First Extension Term and Extended Maturity Date;
(ivd) Tenant Borrower shall have exercised its right to extend extended the term of the Original Lease Mortgage Loan, if the Mortgage Loan is still outstanding, to a maturity date not earlier than the First Extended Maturity Date in accordance with the terms of the Mortgage Loan Agreement;
(e) Both (i) the Additional Extension Conditions shall have been satisfied (except as set forth in clause (h) below), and (ii) substantially all of the 51,519 square feet of space currently leased to Quintiles, Inc. (the "Quintiles Space") has been leased to tenants approved by Lender in its reasonable discretion pursuant to Paragraph 1.1 Leases approved by Lender in its reasonable discretion for a minimum of Exhibit C two (2) years beyond the First Extended Maturity Date, and Lender has received evidence reasonably acceptable to Lender (which evidence shall include tenant estoppel certificates executed by the applicable tenants addressing, among other things, the following matters in form and substance reasonably acceptable to Lender, that (A) such Lease is in full force and effect and no default by the landlord or the tenant is continuing under any such Lease, and (B) such tenants are in occupancy of their demised premises, and have commenced paying full unabated Rent); provided, however, that the foregoing condition set forth in this clause (e)(ii) (but not clause (e)(i)) shall be deemed satisfied if, as of the Initial Maturity Date, the Underwritten Debt Service Coverage Ratio (which shall be calculated excluding Rents payable under the Vacant Space Master Lease) is greater than 1.10:1.0;
(f) Borrower executes and delivers to Lender an amendment to this Agreement, reasonably acceptable to Lender in all respects, which confirms the date to which the Initial Maturity Date has been extended (without any other amendments or confirmations);
(g) Borrower reimburses Lender for all costs and expenses reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; and
(h) In the event that the Additional Extension Conditions have not been satisfied prior to the Original Lease.Initial Maturity Date, the following additional terms and conditions shall apply:
(bi) The Annual Base Rent payable by Tenant Borrower shall pay to Landlord during Lender on the Initial Maturity Date, an extension fee equal to three-eighths of one percent (0.375%) of the Outstanding Principal Balance of the Loan;
(ii) the Applicable Interest Rate for the First Extension Term shall be the greater of the Applicable Interest Rate determined in accordance with Section 2.2.3 hereof or the Minimum Extension Interest Rate;
(iiii) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial Term, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Term, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent all Excess Cash Flow during the First Extension Term under this Lease and under the Original Lease shall be determined together such that applied to pay the Annual Base Rent under both leases shall be Outstanding Principal Balance of the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice Loan in accordance with the provisions of Paragraph 1.1, Section 2.6.4(b)(viii); and
(iv) the Annual Base Rent determined under clause (iVacant Space Master Lease shall be in full force and effect and shall demise the Alaris Space to the Operating Partnership in accordance with the terms and conditions of Sections 3.1.19(a) of Paragraph 1. I and (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten (10) business days after Tenant has been notified by Landlord of the fair market rent, Tenant may initiate the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2
(a) for the appointment of a third arbitrator in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitrator. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment of the second arbitrator, the third arbitrator shall be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitratorhereof.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitrator.
(d) Each of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determined, Tenant shall pay the amount determined by Landlord to be the fair market rent under Paragraph 1.1
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First Extension Option. (a) Tenant shall have the right option to extend the Term of this Lease (the “First Extension Option”) for an one additional term of five (5) years commencing on (the day following “First Extension Period”), upon the expiration terms and conditions hereinafter set forth:
(a) If the First Extension Option is exercised, then the Base Rent per annum for such First Extension Period (the “First Option Rent”) shall be the Fair Market Rental Value (as defined hereinafter) for the Premises as of the initial Term of this Lease (hereinafter referred to as the "Commencement Date commencement of the First Extension Term") and ending on the day preceding the fifth anniversary of the Commencement Date of the Option for such First Extension Term (such additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the "First Extension Notice") of its election to extend the term of this Lease, which notice shall be given at least eleven (11) months, but not more than twelve (12) months, prior to the expiration date of the initial Term of this Lease; and
B. Tenant (i) is the Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named herein, (ii) actually occupies all of the Leased Premises initially demised under this Lease, and (iii) is not in default under this Lease or the Original Lease as of the time of the giving of the First Extension Notice and the Commencement Date of the First Extension Term and (iv) Tenant shall have exercised its right to extend the term of the Original Lease pursuant to Paragraph 1.1 of Exhibit C to the Original LeasePeriod.
(b) The Annual Base Rent payable First Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this subsection 51.1(b).
(i) If Tenant wishes to Landlord during exercise the First Extension Term shall be the greater of (i) the product that results from multiplying ninety-five percent (95%) by the fair market rent for the Leased Premises or (ii) the product that results from multiplying the Annual Base Rent payable during the twelve (12) month period preceding the First Extension Term by 102%, such product to be escalated by 2% on each anniversary of the Commencement Date of the First Extension Term. Fair market rent shall be determined by Landlord, subject to the right of Tenant to arbitrate the amount of fair market rent as hereinafter provided. At least fifteen (15) months prior to the expiration of the initial Term, but in no event more than sixteen (16) months prior to the expiration of the initial TermOption, Tenant may give Landlord notice of its desire to determine Landlord's good faith determination of the fair market rent for the Leased Premises applicable to the First Extension Term. After Landlord receives such notice and at least fourteen (14) months prior to the expiration of the initial Termmust, Landlord shall give Tenant notice of such determination. The determination of fair market rent shall take into consideration fair market concessions available to a renewal tenant for comparable office space in Arlington County, Virginia. Notwithstanding anything herein to the contrary, the Annual Base Rent during the First Extension Term under this Lease and under the Original Lease shall be determined together such that the Annual Base Rent under both leases shall be the same amount on a per square foot basis.
(a) In the event Tenant gives the First Extension Notice in accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined under clause (i) of Paragraph 1. I (b) is the greater than the Annual Base Rent determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b), then at any time on or before the date occurring ten nine (109) business days after Tenant has been notified by Landlord months before the expiration of the fair market rentinitial Lease Term (but not before the date that is twelve (12) months before the expiration of the Initial Lease Term), exercise the First Extension Option by delivering written notice (the “First Exercise Notice”) to Landlord. If Tenant timely and properly exercises its First Extension Option, the Lease Term shall be extended for the First Extension Period upon all of the terms and conditions set forth in the Lease, as amended, except that the rent for the First Extension Period shall be as provided in subsection 51.1(a) and Tenant shall have no further options to extend the Lease Term except for the Second Extension Option.
(ii) If Tenant fails to deliver a timely First Exercise Notice, Tenant may initiate shall be considered to have elected not to exercise the arbitration provided for herein by giving notice to that effect to Landlord, and if Tenant so initiates the arbitration such notice shall specify the name and address of the person designated to act as an arbitrator on Tenant's behalf. Within ten (10) business days after Landlord receives such notice from Tenant, Landlord shall give notice to Tenant specifying the name and address of the person designated to act as an arbitrator on its behalf. If Landlord falls to notify Tenant of the appointment of its arbitrator within such ten (10) business day period, then Tenant may request the appointment of the second arbitrator in the same manner as hereinafter provided under this Paragraph 1.2First Extension Option.
(ac) for It is understood and agreed that the appointment First Extension Option hereby granted is personal to Original Tenant and is not transferable except to a Permitted Transferee in connection with an assignment of a third arbitrator Tenant’s entire interest in a case where neither the two arbitrators appointed hereunder nor the parties are able to agree upon such appointment. The two arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if, within ten (10) business days after the second arbitrator is appointed the two arbitrators do not agree upon the fair market rent, they shall together appoint a third arbitratorthis Lease. In the event of their being unable to agree upon such appointment within fifteen (15) business days after the appointment any assignment or subletting of the second arbitratorPremises or any part thereof (other than to a Permitted Transferee), the third arbitrator First Extension Option shall automatically terminate and shall thereafter be selected by the parties themselves if they can agree thereon within a further period of five (5) business days. If the parties do not so agree, then Tenant, on behalf of itself null and Landlord and on prior notice to Landlord, within twenty-five (25) business days after the appointment of the second arbitrator, may request such appointment by the American Arbitration Association (or any organization successor thereto) in accordance with its rules then prevailing or if the American Arbitration Association (or such successor organization) shall fail to appoint said third arbitrator within ten (10) business days after such request is made, then Tenant may apply within five (5) business days after such ten (10) business day period, on notice to Landlord, to the General District Court, Arlington County, Virginia (or any other court having jurisdiction and exercising functions similar to those now exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original arbitrator appointed by or for such party, and all other expenses (not including the attorneys fees and similar expenses of the parties which shall be borne separately by each of the parties) of the arbitration shall be borne by the parties equally, unless a third arbitrator is selected or appointed in which event all expenses of the parties, regardless of the nature of such expenses, and the fees and expenses of the third arbitrator shall be borne by the party by or for whom the arbitrator was appointed, which arbitrator's determination of fair market rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph 1.2(a) above, then such third arbitrator shall select either the fair market rent determined by the arbitrator appointed by or for Landlord or the fair market rent determined by the arbitrator selected by Tenant; the third arbitrator may not select any other amount, and may not "split the difference" between the determinations of the arbitrators selected or appointed by or for the parties. The third arbitrator shall so determine the fair market rent of the Leased Premises and render a written certified report of his determination to both Landlord and Tenant within ten (10) business days after appointment of the third arbitratorvoid.
(d) Each Tenant’s exercise of the arbitrators selected as herein provided shall have at least ten (10) years experience in the leasing and renting of office space in first class buildings in Arlington County, Virginia. In addition, the third arbitrator (if any) shall be an independent party not affiliated in any way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration process and as of the date of expiration of the initial Term of this Lease the amount of fair market rent for the First Extension Term has not been determinedOption shall, if Landlord so elects in its absolute discretion, be ineffective in the event that (i) an Event of Default by Tenant remains uncured at the time of delivery of the First Exercise Notice or at the commencement of the First Extension Period or (ii) Tenant shall pay have reduced the amount determined size of the Premises below 23,993 rentable square feet by agreement with Landlord or pursuant to be the fair market rent under Paragraph 1.1an express right in this Lease.
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Sources: Lease Agreement (Veritone, Inc.)