Option to Extend. Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 2 contracts
Sources: Office Lease (Wells Real Estate Fund Ix Lp), Office Lease (Gaiam Inc)
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) yearsyears (such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant or a Permitted Transferee which has satisfied the requirements of Sections 10.01 and 10.05 of the Lease must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant shall not satisfy such condition) of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. In order Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change.
(b) Tenant’s election (the “Election Notice”) to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than the date which is twelve (27012) days months prior to the Expiration Date and no later than the date which is nine (9) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend.
(c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the Lease preceding Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Lease. Tenant’s leasing of the initial Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security was in relation to Rent for the Term prior to the Option Term. Upon receipt , but in no event shall the Security be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of such notice from Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant exercising any allowance therefor, except to the renewal option herein grantedextent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit F hereto, provided, however, Landlord shall submit in writing by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Offer Space, a proposal for rent credit equal to the then current amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Offer Space and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Base Rental Rate (per rentable square foot per annumas defined in Exhibit F) plus Rent Adjustments and/or certain Operating Expenses (if applicable, “NNN”based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the renewal termPremises. Tenant shall have thirty may, within fifteen (3015) days from the after receipt of said thereof, deliver to Landlord a written notice from Landlord to notify Landlord in writing of either: (i) Tenantaccepting Landlord’s acceptance of determination, in which case the proposed Market Base Rental Rate, extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s rejection of good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Base Rental Rate and election to initiate the appraisal process set forth belowOption Term Rent. If Tenant fails Tenant’s failure to timely accept or reject the Market Base Rental Rate specified in Landlord’s deliver such notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant within such fifteen (15) day period shall be deemed to have elected to extend its cancellation of the Lease Term for Option. In the period specified in event Tenant has delivered notice setting forth Tenant’s original notice of exercise of the renewal option at the different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level Option Term Rent is reached within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date Landlord’s receipt of Tenant’s objectionestimate, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Fair Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject determined in accordance with the terms of Exhibit F. Notwithstanding any of the foregoing to the limitations on Market Base Rental Rate set forth in contrary, at no time during the first paragraph of this SectionOption Term shall the Option Term Rent be less than the “Preceding Rent” (defined below). Each The Preceding Rent shall mean the sum of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Monthly Base Rent required payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease term until (if applicable, using the appraisers have made their determinationbase year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. The To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Base Rental Rate as used herein. Further, in questionthe event that Landlord notifies Tenant that the Option Term Rent shall equal the Preceding Rent, when finally determined by the appraisers, such determination shall be retroactive conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below).
(e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend.
(f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect:
(i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default.
(iii) Tenant’s third Default under the Lease prior to the commencement of the extension termOption Term, and notwithstanding that all such Defaults may subsequently be cured.
(g) Without limiting the first Base Rent payment becoming due after the determination generality of any provision of the applicable Market Base Rental Rate Lease, time shall include be of the retroactive amounts essence with respect to all of monthly Base Rent installments accrued the provisions of this Section.
(h) This Option to Extend is personal to Genomic Health and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised used by, and the Lease shall not be extended transferable or assignable (voluntarily or involuntarily) to any person or entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, and such Permitted Transferee may exercise the right without Tenant joining in or consenting to such exercise, and notwithstanding anything to the contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and effect as if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordhad joined in such exercise.
Appears in 2 contracts
Sources: Lease (Genomic Health Inc), Lease Agreement (Genomic Health Inc)
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the Modified Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) years. In order years (such period may be referred to as the “Option Term”), as to the entire Premises as it may then exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such right: (i) Tenant must be in occupancy of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder.
(b) Tenant’s election (the “Election Notice”) to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than the date which is twelve (27012) days months before the Expiration Date and no later than the date which is nine (9) months prior to the Expiration Date. If Tenant either fails or elects not to exercise its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void.
(c) The Option Term shall commence immediately after the expiration of the Lease Modified Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Lease. Tenant’s leasing of the initial Term. Upon receipt of such notice from Tenant exercising Premises during the renewal option herein granted, Landlord Option Term shall submit be upon and subject to the same terms and conditions contained in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of Lease except that (i) the monthly base rent, plus payment of Tenant’s acceptance proportionate share of Operating Expenses and Utilities charges pursuant to the proposed Market Base Rental RateLease (in addition to all expenses paid directly by Tenant to the utility or service provider, or which direct payments shall continue to be Tenant’s obligation) shall be amended to equal the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) Tenant’s rejection the Security Deposit provisions shall remain as provided in the Lease; (iii) Tenant shall accept the Premises in its “AS-IS” condition without any obligation of Landlord to repaint, remodel, repair (except as otherwise provided for in the Market Base Rental Rate and election to initiate Lease), improve or alter the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice Premises or to elect not provide Tenant any allowance therefor; and (iv) there shall be no further option or right to extend the term of the Lease as provided Lease. If Tenant timely and properly exercises the Option To Extend, references in the immediately preceding sentence, Tenant Lease to the Term shall be deemed to have elected to extend mean the Lease Modified Term for as extended by the period specified in Tenant’s original notice Option Term unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the greater of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) monthly base rent payable by Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in under this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, Lease calculated at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Modified Term, plus payment of Tenant’s proportionate share of Operating Expenses and Utilities charges pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall continue to be Tenant’s obligation) (collectively, “Preceding Rent”) or (ii) the “Prevailing Market Rent”. As used herein Prevailing Market Rent shall mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term until equal to the appraisers have made their determinationOption Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the Premises; the type and quality of tenant improvements; age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor. The determination of Prevailing Market Base Rental Rate Rent based upon the foregoing criteria shall be made by Landlord, in questionthe good faith exercise of Landlord’s business judgment. Within thirty (30) days after Tenant’s exercise of the Option To Extend, when finally Landlord shall notify Tenant of Landlord’s determination of Option Term Rent for the Premises. If Landlord’s determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant’s sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant may elect to revoke and rescind the appraisersexercise of the option by giving written notice thereof to Landlord within forty-five (45) days after notice of Landlord’s determination of Prevailing Market Rent.
(e) This Option to Extend is personal to Cygnus and to any assignee of the Lease which is an Affiliate (defined below) and may not be used by, and shall not be retroactive transferable or assignable (voluntarily or involuntarily) to any other person or entity. For purposes of this Section, “Affiliate” means (i) any subsidiary, affiliate or division controlled by Tenant; (ii) a successor corporation related to Tenant through merger, consolidation or non-bankruptcy reorganization; or (iii) a purchaser of substantially all of Tenant’s assets, in each case of (i), (ii) and (iii) which also must satisfy the requirements described in the paragraph immediately following Paragraph 15(d) of the Lease.
(f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, with the effect of canceling and voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant’s failure to timely exercise the Option to Extend in accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the extension term, Option Term of any default beyond any applicable notice and grace period.
(g) Without limiting the first Base Rent payment becoming due after the determination generality of any provision of the applicable Market Base Rental Rate Lease, time shall include be of the retroactive amounts essence with respect to all of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice provisions of default which default is not cured within any applicable cure periods or waived by Landlordthis Section.
Appears in 1 contract
Sources: Ten Year Industrial Net Lease Agreement (Cygnus Inc /De/)
Option to Extend. A. Landlord grants to Tenant shall have an the option to extend the term of this Lease for two 3-year periods commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Tenant gives to any portion or portions thereof) Landlord and Landlord receives notice of the exercise of the option to extend this Lease for one (1) said additional term of five no later than twelve (512) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate expire;
(ii) At the time said written notification of exercise of option is given and received, Tenant shall not be in default under any of no further force and effect the material obligations of this Lease to be performed by Tenant and this Lease shall terminate upon not have previously terminated nor terminated prior to the expiration commencement of the initial Termoption term;
(iii) All of the terms and conditions of this Lease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows: The rent payable by Tenant during the first option period shall be the Fair Market Rental Value of the Premises (as defined below) at the commencement date of the option period. Upon receipt There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the first option period. The rent in the first year of the second option period shall be the rent in the last year of the first option period to which will be added a C.P.I. increase not to exceed four percent (4%). There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the second option period. All of the C.P.I. increases during the option periods shall be calculated on the basis of the formula provided in the Lease P.5.B. If Landlord and Tenant cannot agree on the Fair Market Rental Value of the Premises for the extension periods within forty-five (45) days after the Tenant has notified Landlord of its exercise of the option, Landlord and Tenant shall each select, within forty-five (45) days of such notice from Tenant exercising notification, an appraiser who must be a qualified M.A.I. appraiser to determine said Fair Market Rental Value. If one party fails to so designate an appraiser within the renewal option herein grantedtime required, Landlord the determination of Fair Market Rental Value of the one appraiser who has been designated by the other party hereto within the time required shall be binding upon both parties. The appraisers shall submit in writing their determinations of Fair Market Rental Value to both parties within thirty (30) days after their selection. If the difference between the two determinations is ten percent (10%) or less of the higher appraisal, then the average between the two determinations shall be the Fair Market Rental Value of the Premises. If said difference is greater than ten percent (10%), then the two appraisers shall within twenty (20) days of the date that the later submittal is submitted to the parties designate a proposal for third appraiser who must also be a qualified M.A.I. appraiser. The sole responsibility of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for third appraiser will be to determine which of the renewal termdeterminations made by the first appraisers is most accurate. Tenant The third appraiser shall have thirty (30) days from the receipt no right to propose a middle ground or any modification of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance either of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of determinations made by the Market Base Rental Rate and election to initiate the appraisal process set forth belowfirst two appraisers. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant The third appraiser's choice shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject submitted to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level parties within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant his or her selection. Such determination shall bind both of the parties and shall establish the Fair Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days Value of the date of Tenant’s objection, each Premises. Each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole pay for their own appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either pay an equal share of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it fees and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection expenses of the third appraiser. Fair Market Rental Value for purpose of this Lease shall mean the then prevailing rent for premises comparable in size, quality, and orientation to the demised Premises, located in buildings comparable in size to, and in the general vicinity of, the third appraiser shall determine building which the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementdemised Premises are located, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive leased on terms comparable to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established terms contained in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordthis Lease.
Appears in 1 contract
Option to Extend. Tenant shall have an option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years, commencing upon the expiration of the initial term of this lease and terminating sixty (60) months thereafter (the "Option Term"), provided that Tenant proceeds strictly in accordance with the provisions of this Section XLVIII. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy Not less than twelve (27012) days months prior to the expiration of the Lease Term (i.e.initial term of this Lease, by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify advise Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If that Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not wishes to extend the term of the this Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified Option Term. If at the time Landlord receives Tenant's extension notice this lease is in Tenant’s original notice of exercise full force and effect without default on the part of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than then, during the next thirty (30) days after the date day period, Landlord notifies shall notify Tenant in writing of the Market Base Rental Rate, objects to rent which shall be due for the Market Base Rental Rate determined Option Term. The rent specified by Landlord and elects to submit shall be that which the rate determination to appraisal, then, within seven (7) days Landlord reasonably projects will be the fair market rent as of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date commencement of the appointment of Option Term, but in no event less than the rent for the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after year during the other party has given notice initial term of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within . Within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days weeks after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of the rent which shall be due during the Option Term, Tenant shall notify Landlord whether or not it agrees to pay such rent. If Tenant shall agree in writing to pay such rent, and if upon the commencement date of the Option Term, the lease is in full force and effect without default on the part of the Tenant, then this Lease shall be extended for the Option Term without the execution of any additional documents, and each and every term and condition of this Lease shall apply during the Option Term except only that the rent which default is shall be due during the Option Term shall be that agreed upon by Landlord and Tenant, and the phrase "term of this Lease" shall be construed to mean the Option Term of this Lease. If Tenant shall not cured within any applicable cure periods agree in writing to pay such rent, this Lease shall terminate as provided in Section III, and Tenant shall vacate the demised premises on or waived by Landlordbefore such date in accordance with the provisions of this Lease. If Tenant shall fail to give Landlord written notice of its desire to extend the term of this Lease as hereinbefore specified, Tenant shall have no right to extend this Lease for the Option Term, and this Lease shall terminate as provided in Section III, and Tenant shall vacate the demised premises on or before such date in accordance with the provisions of this Lease.
Appears in 1 contract
Option to Extend. (1) Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) ), but not more than three hundred sixty (360), days prior to the expiration of the Lease Term (i.e., by September 4, 2007) respective lease term of its election to exercise the option, upon which time Landlord shall submit in writing within thirty (30) days thereafter a proposal for the then current Market Base Rental Rate (per rentable square foot per annum) for the extended term. Tenant shall have thirty (30) days from the receipt of said notice to (i) accept the proposed Market Base Rental Rate in writing to Landlord, (ii) to reject the Market Base Rental Rate and elect the appraisal process set forth below, or (iii) elect not to extend. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, [all of] the option option(s) shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal Lease term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (iA) the amount of Base Rent, which shall be determined as set forth herein, (iiB) options to extend or extend, options to expand, and rights of refusal, which shall not be applicable, and (iiiC) Tenant allowances or other concessions which shall pay Tenant’s Prorata Share of Operating Expenses throughout not be applicable to the renewal extension term. As used herein, and subject to the limitations set forth in this paragraph, “"Market Base Rental Rate” " shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in Base Rental Rate for comparable first class multi-tenant office buildings of comparable size, location and age in the County of BoulderBroomfield, Colorado, at such time, taking into account all relevant the following factors, including, without limitation, use, location and/or floor level within the applicable building, definition of : (i) rent per rentable area, leasehold improvements provided, credits or allowances grantedsquare foot; (ii) operating expenses and real estate tax 35 41 payments; (iii) current rental escalators; and (iv) rental concessions, if any, quality, age and location as applicable to market renewals of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordleases.
Appears in 1 contract
Sources: Office Lease (McData Corp)
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) yearsyears (such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant shall not satisfy such condition) of at least fifty percent (50%) of the Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants or Chief Financial Officer or Chief Executive Officer, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. In order Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants or Chief Financial Officer or Chief Executive Officer do not certify there has been no such change.
(b) Tenant’s election (the “Election Notice”) to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than the date which is twelve (27012) days months prior to the Expiration Date and no later than the date which is nine (9) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend.
(c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the Lease preceding Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Lease. Tenant’s leasing of the initial Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term. Upon receipt , but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of such notice from Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant exercising any allowance therefor, except to the renewal option herein grantedextent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit E hereto, provided, however, Landlord shall submit in writing by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a proposal for rent credit equal to the then current amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Base Rental Rate (per rentable square foot per annumas defined in Exhibit E) plus Rent Adjustments and/or certain Operating Expenses (if applicable, “NNN”based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the renewal termPremises. Tenant shall have thirty may, within fifteen (3015) days from the after receipt of said thereof, deliver to Landlord a written notice from Landlord to notify Landlord in writing of either: (i) Tenantaccepting Landlord’s acceptance of determination, in which case the proposed Market Base Rental Rate, extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s rejection of good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Base Rental Rate and election to initiate the appraisal process set forth belowOption Term Rent. If Tenant fails Tenant’s failure to timely accept or reject the Market Base Rental Rate specified in Landlord’s deliver such notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant within such fifteen (15) day period shall be deemed to have elected to extend its cancellation of the Lease Term for Option. In the period specified in event Tenant has delivered notice setting forth Tenant’s original notice of exercise of the renewal option at the different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level Option Term Rent is reached within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date Landlord’s receipt of Tenant’s objectionestimate, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Fair Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject determined in accordance with the terms of Exhibit E. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementLease, Tenant shall continue to pay such amounts.
(e) Promptly after final determination of the applicable Base Rent required Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the last full month Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the Lease term until proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the appraisers foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend.
(f) Upon the occurrence of any of the following events, Landlord shall have made their determination. The Market Base Rental Rate in questionthe option, when finally determined by exercisable at any time prior to commencement of the appraisersOption Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be retroactive of no force or effect:
(i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease or of any state of facts which with the passage of time or the giving of notice, Igor both, would constitute such a Default.
(iii) Tenant’s third Default under the Lease prior to the commencement of the extension termOption Term, notwithstanding that all such Defaults ma), subsequently be cured.
(g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section.
(h) This Option to Extend is personal to Bolt Biotherapeutics, Inc., a Delaware corporation, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised used by, and the Lease shall not be extended if Landlord has given Tenant notice transferable or assignable (voluntarily or involuntarily) to any person or entity except a Permitted Transferee that satisfies the terms and conditions of default which default is not cured within any applicable cure periods or waived by LandlordSection 10.01(e) of the Lease.
Appears in 1 contract
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the Extended Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) years. In order years (such period may be referred to as the "Option Term"), as to the entire Premises as it may then exist, upon and subject to the terms and conditions of this Section (the "Option To Extend"), and provided that at the time of exercise of such right: (i) Tenant must be in occupancy of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder.
(b) Tenant's election (the "Election Notice") to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least no earlier than the date which is two hundred and seventy (270) days before the Expiration Date and no later than the date which is two hundred and forty (240) days prior to the Expiration Date. If Tenant either fails or elects not to exercise its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void.
(c) The Option Term shall commence immediately after the expiration of the Lease Extended Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Lease. Tenant's leasing of the initial Term. Upon receipt of such notice from Tenant exercising Premises during the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Option Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of and subject to the terms, same terms and conditions and covenants of this contained in the Lease except as to that (i) the amount monthly base rent, plus payment of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share 's proportionate share of Operating Expenses throughout the renewal term. As used herein, and subject Utilities charges pursuant to the limitations set forth Lease (in this paragraphaddition to all expenses paid directly by Tenant to the utility or service provider, “Market Base Rental Rate” which direct payments shall mean as of any date continue to be Tenant's obligation) shall be amended to equal the then annual net rental rate (exclusive of real estate taxes"Option Term Rent", utilities defined and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age determined in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate manner set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.immediately following Subsection;
Appears in 1 contract
Option to Extend. Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional option to extend the term of five this Lease for a three (53) years. In order year period (“Option Period”), with the Option Period commencing on the day after the last day of the initial term of this Lease and subject to exercise such optionthe following terms and conditions:
a. At the time the option is exercised, this Lease shall be in full force and effect, Tenant shall notify not be in default hereunder (following the expiration of all cure periods), and Tenant shall not have sublet the Premises, unless in a transaction for which Landlord’s consent is not required or as to a shared use sublet of a portion of the Premises; and
b. The option must be exercised by notice given to Landlord in writing at least two hundred seventy not earlier than twelve (27012) days months and not later than nine (9) months prior to the expiration of the term of this Lease Term (i.e.“Exercise Period”); and
c. In the event the option is timely and effectively exercised, by September 4the term shall be extended for a period of three (3) years, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being upon all of the essenceterms and conditions of the Lease; provided, however, that the Base Rent shall be the then fair market rental value of the Premises and provided further that the base year for calculation of Tenant’s Percentage Share of Operating Expenses and Property Taxes shall be amended to a base year consistent with the fair market rental value of the Premises, but in no event shall the amount payable by Tenant as Base Rent and Tenant’s Percentage Share of Operating Expenses and Property taxes be less than the sum of the average Base Rent for the term of this Lease and Tenant’s Percentage Share of Operating Expenses and Property Taxes in effect immediately prior to the Option Period, and there shall be no further options to extend. Fair market rental value may include periodic increases.
d. Determination of the fair market rent during the Option Period shall be as follows: For the purposes hereof, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration fair market rent of the initial TermPremises shall be product of (1) the annual amount per square foot that a willing, comparable tenant would pay and a willing, comparable landlord of a comparable building in the immediate area would accept at “arm’s length,” giving appropriate consideration to the credit of the Tenant, free rent and other tenant inducements then being offered for comparable space, length of lease term, size and location of premises being leased, tenant improvement allowances, if any, and other generally applicable terms and conditions of tenancy for comparable space, and (2) the rentable area of the Premises. Upon receipt of such notice from Tenant exercising the renewal option herein grantedAt Tenant’s request, Landlord shall submit in writing within thirty (30) days a proposal of commencement of the Exercise Period, Landlord shall provide Tenant with the proposed fair market rent for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termPremises. Tenant may dispute Landlord’s determination of fair market rent by notice given to Landlord within fifteen (15) days after Landlord’s determination is given to Tenant, and the parties shall have then negotiate in good faith to resolve the dispute. If such dispute is not resolved by negotiation between the parties within thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) following Tenant’s acceptance notice of its dispute of Landlord’s determination, then fair market rent shall be determined by baseball-type arbitration before a single arbitrator in accordance with the commercial arbitration rules of the proposed Market Base Rental Rate, or American Arbitration Association then in effect.
(ii1) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to does not timely accept or reject the Market Base Rental Rate specified in dispute Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentencedetermination, Tenant then Landlord’s determination shall be deemed to have elected to extend the Lease Term for fair market rent during the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthOption Period. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who fair market rent has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term been determined prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension termOption Period, and the first Tenant shall pay Base Rent payment becoming when due based upon Landlord’s determination of fair market rent, subject to retroactive adjustment between the parties if the determination by appraisal is different from Landlord’s determination.
(2) When fair market rent is to be determined by arbitration, within ten (10) days after the determination expiration of the applicable Market Base Rental Rate thirty (30) day negotiation period, Landlord and Tenant shall include agree upon a mutually acceptable arbitrator to determine the retroactive amounts fair market rent of monthly Base Rent installments accrued the Premises. Should Landlord and unpaid. In no event may Tenant be unable to agree upon an arbitrator, then either Landlord or Tenant elect not may submit to extend the Lease based upon American Arbitration Association (“AAA”) for appointment of the Market Base Rental Rate established arbitrator pursuant to its applicable rules then in accordance herewitheffect. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.Paragraph 10
Appears in 1 contract
Sources: Industrial Gross Lease (Celera CORP)
Option to Extend. Tenant shall have an option to extend and renew is granted the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not right to extend the term of the Lease beyond August 7, 2010 for one (1) period of sixty (60) months (the “Extended Term”). Such right is subject to Landlord’s approval of Tenant’s financial condition and all terms and conditions set forth in Section 3.b and 3.c of the Initial Lease including without limitation the requirement to exercise such option by providing written notice to Landlord no later than twelve (12) months prior to the termination of the Lease term (as provided redefined in Section 3 above) and Tenant’s satisfaction of Landlord’s then-existing standards of creditworthiness and use. Landlord shall review Tenant’s financial condition and Tenant’s satisfaction of Landlord’s then existing standards of creditworthiness and use based on such criteria as are applied to tenants in the immediately preceding sentence, Project with consideration given to the amount of space in the Building then leased to Tenant shall be deemed and the additional risk to have elected Landlord inherent in leasing that amount of space to a single tenant. Tenant’s right to extend the Lease Term for the period specified in Extended Term is personal to Tenant and may not be exercised by any subtenant or assignee of Tenant’s original notice of exercise . From and after the commencement of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon Extended Term, all of the terms, covenants, and conditions of the Lease shall continue in full force and covenants of this Lease effect as written, except as to that (i) Section 7 of this Fourth Amendment and the amount of Base Rentattached Work Letter Agreement shall not apply, which shall be determined as set forth herein, and (ii) options to extend or to expand, which Base Monthly Rent for Suites 300/800 and the Fourth Amendment Expansion Space for the Extended Term shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share at Fair Market Rent determined in accordance with Section 3.c of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (Initial Lease based on the floor on which such suites are located (provided the Base Monthly Rent for the Premises as a five (5whole shall be due and paid in one lump sum each month) year term) of space provided, however, that in comparable first class multi-tenant office buildings of comparable size, location and age no event shall the new Base Monthly Rent be less than that paid in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month year of the Lease term until the appraisers have made their determination. The Market Base Rental Rate (as redefined in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordSection 3 above).
Appears in 1 contract
Sources: Office Lease (Corus Pharma Inc)
Option to Extend. Landlord grants to Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not options to extend the term of the Lease as provided in the immediately preceding sentencethis lease for a period of three years each subject to all terms and conditions herein contained except this paragraph, paragraph 47 - Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the termsImprovements, conditions and covenants of this Lease except as to (i) the amount of Base Rent, monthly rental which shall be determined as set forth hereinbelow. In order to exercise this option, (ii) options Tenant must have performed all the covenants and obligations of Tenant herein and at least six months before the ending date of the initial term of this lease or of the first extended term of three years, must have delivered to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share Landlord written notice of Operating Expenses throughout the renewal termexercise of this option. As used hereinof the date of exercise by Tenant of its option to extend, and the monthly base rental for the Extended Term of three years shall be subject to negotiation between the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities Landlord and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a Tenant. Not later than five (5) year termfull calendar months prior to the expiration date of the Initial Term, or of the extended term as the case may be, Landlord and Tenant shall meet and endeavor to agree between themselves as to the fair market base monthly rental of the premises, as of the commencement of the Extended Term. If the parties are able to agree on such fair market base monthly rental, said base monthly rent shall be the rental for the premises during the Extended Term. In the event the parties fail to agree upon said amounts for the Extended Term, at least four (4) of space in comparable first class multi-tenant office buildings of comparable sizefull calendar months prior to commencement thereof, location and age the base monthly rental for the Extended Term, shall be determined by appraisal in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within manner hereafter set forth. In the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location event it becomes necessary under this subparagraph to determine the fair market base monthly rental of the applicable buildingpremises by appraisal, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes Landlord and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty three (303) days after the date Landlord notifies Tenant full calendar months prior to commencement of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objectionExtended Term, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has an experienced real estate appraiser with at least five (5) years’ full-time commercial appraisal years experience in Boulder County to the leasing of industrial office property in the general vicinity of the premises. The two appraisers so selected shall each determine the Market Base Rental Ratefair market base monthly rental for the premises taking into account the value of the property and comparable prevailing rentals including escalations for a three (3)year term in that area. Such appraisers shall, such process to be completed within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. If the date fair market monthly base rental of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated premises established in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed appraisals varies by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) or less of the higher or lower than rental, the middle appraisal average of Market Base Rental Rate and the remaining appraisals two shall then be averagedcontrolling. If said fair market monthly base rental varies by more than ten percent (10%) of the Market Base Rental Rate is not established for higher rental, said appraisers, within ten (10) days after the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for submission of the last full month appraisal, shall appoint a third appraiser who shall also meet the qualifications set forth above. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market monthly base rental of the-premises, taking into account the Lease term until the appraisers have made their determinationsame factors referred to above, and submit his appraisal report to Landlord and Tenant. The Market Base Rental Rate in question, when finally fair market monthly base rental determined by the appraisers, third appraiser for the premises shall be retroactive to controlling, unless it is less than that set forth in the commencement of lower appraisal previously obtained, in which case the extension termvalue set forth in said lower appraisal shall be controlling, and or unless it is greater than that set forth in the first Base Rent payment becoming due after higher appraisal previously obtained, in which case the determination of the applicable Market Base Rental Rate base rental set forth in said higher appraisal shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidbe controlling. In no event may If either Landlord or Tenant elect not fails to extend appoint an appraiser or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the Lease based upon the Market Base Rental Rate established required period in accordance herewithwith the foregoing, the appraisal submitted by the other appraiser shall be controlling. This The term "fair market monthly base rental" used for all purposes of this paragraph, shall include escalation over the three year term. The cost of all appraisals under this subparagraph shall be borne equally by Landlord and Tenant. Upon determination of the fair market base monthly rental by appraisal, the parties hereto shall immediately execute an addendum to this Lease stating the fair market base monthly rental so determined. In the event of exercise of the option to extend may not extend, the security deposit shall continue to be exercised held under the provisions of the lease, to be returned to Tenant to the extent therein set forth, within 30 days after the termination of the extension period and vacation of the premises by Tenant. It is agreed that this Option to Extend is personal to Tenant, and has been granted because of specific use of the premises by Tenant and agreements in the lease concerning Tenant's improvements. In the event this lease is assigned or sublet to any third party or entity other than to successor tenant as defined by paragraph 24 (f), this Option to Extend shall be null and void. Landlord and Tenant have executed and delivered this Lease as of the date first hereinabove set forth. LANDLORD TENANT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. and Olivetti Advanced Technology ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Center, Inc. /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇.▇. ▇▇▇▇▇▇▇ ___________________________ By ______________________ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ __________________________ Printed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ Name: _____________________ Treasurer/Controller Title: ______________________ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: ________________________ Printed Name:______________________ Title: ______________________ ADDENDUM ONE TO LEASE AGREEMENT dated by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ as Landlord, and OLIIVETTI ADVANCED TECHNOLOGY CENTER, INC., as Tenant MODIFICATIONS, ADDITIONS AND AMENDMENTS TO LEASE The provisions of this Addendum One shall modify, amend and be in addition to the provisions of the Lease. Where the provisions of this Addendum One are inconsistent with the provisions of the Lease, the provisions of this Addendum One shall govern.
1. Tenant has inspected the premises and accepts the premises in "As Is" condition with the following exceptions:
1) The roof shall be inspected by a reputable roofing contractor selected by Landlord and approved by Tenant, which approval shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived unreasonably withheld. Repairs recommended by this inspection to place the roof in good condition prior to the lease commencement date shall be accomplished with the cost to be borne by Landlord.
2) The HVAC equipment on the roof shall be inspected by a reputable HVAC contractor selected by Landlord and approved by Tenant, which approval shall not be unreasonably withheld. Repairs or replacements recommended by this inspection to place this equipment in good condition prior to the lease commencement date shall be accomplished with the cost to be borne by Landlord.
2. Tenant may for the purpose of installing Tenant Improvements, occupy the Premises prior to the Commencement date of the Lease (Early Occupancy) on February 1, 1995. If Tenant Improvements are completed prior to the Lease Commencement date, Tenant may occupy the premises and carry on its business. Said Early Occupancy shall be under all terms and provisions of this lease except that no Base rent and Additional Rent shall be payable for this period. Prior to February 1, 1995, subject to the approval of Diamond Computer Systems, Tenant shall have reasonable access to the Premises for the purpose of architectural and engineering planning.
3. Landlord warrants and represents to Tenant that to the best of Landlord's knowledge on the date this Lease is executed there is no asbestos on the Premises. Tenant shall not bring nor permit asbestos to be brought onto the Premises.
4. In the event Tenant wishes to install additional air conditioning or other equipment on the roof, Tenant shall furnish an engineer's report certifying that the structural integrity of the roof and roof covering will not be adversely affected by the proposed addition.
5. Notwithstanding the provisions of Paragraph 22 of the Lease to the contrary, in the event Landlord elects to repair or restore the Premises and such repair or restoration is reasonably estimated by Landlord to require more than one hundred eighty (180) days from the date of destruction, Landlord shall notify Tenant and Tenant shall have ten (10) days after receipt of such notice to elect to terminate the Lease by giving written notice of such election to Landlord. If Tenant so elects to terminate the Lease, such termination shall be effective as of (i) if Tenant is in possession of the Premises following such damage or destruction, the date Tenant surrenders possession of the Premises to Landlord following Tenant's election to terminate the Lease or (ii) if Tenant is unable to occupy the Premises following such damage and destruction, the date on which the damage or destruction occurred.
Appears in 1 contract
Sources: Sublease (MMC Networks Inc)
Option to Extend. Landlord grants Tenant shall have an option to extend and renew (the Lease as to all of the Premises (but not as to any portion or portions thereof"Option") for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in for one additional term of 5 years (the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice"Option Term"). Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject The Option applies only to the limitations set forth Premises and is on the following conditions:
A. Notice of Tenant's interest in this paragraph, “Market Base Rental Rate” shall mean as of any date exercising the then annual net rental rate Option must be given to Landlord no earlier than 12 months and no later than 9 months prior to the Expiration Date (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth"Tenant's Notice"). If Tenant, by written notice delivered no Not later than thirty (30) days after the date receiving Tenant's Notice, Landlord notifies will notify Tenant of the Market Base Rental RateRent applicable during the Option Term in accordance with subparagraph E below ("Landlord's Notice").
B. Tenant has 15 days after receipt of Landlord's Notice to exercise the Option or dispute the rental rate quoted by Landlord by delivering notice of exercise or dispute to Landlord. If Tenant timely exercises the Option, objects the Term will be deemed extended on the terms of this Section and the parties will execute an amendment evidencing the extension. If Tenant disputes Landlord’s determination of the rental rate, Tenant shall give notice of such dispute (“Dispute Notice”) within the 15-day period and the Base Rent rate shall be determined in accordance with Paragraph F below.
C. Unless Landlord is timely notified by Tenant in accordance with subparagraphs A and B above, it will be conclusively deemed that Tenant has not exercised the Option and the Lease will expire in accordance with its terms on the Expiration Date.
D. Tenant's rights under the Option are personal to Tenant and may not be assigned except to a Permitted Transferee. Tenant's right to exercise the Option is conditioned on: (i) no Event of Default existing at the time of exercise or at the time of commencement of the respective Option Term; (ii) Tenant not having subleased or vacated more than 25% of the Premises or assigned its interest under the Lease, except to Permitted Transferee, as of the commencement of the Option Term; and (iii) Tenant having the financial ability to perform its obligations under Option Term. Upon an assignment of the Lease except to a Permitted Transferee, the Option is null and void.
E. The Option granted hereunder will be upon the terms of the Lease, including payment of all Rent, except that the Base Rent during the Option Term will be the rate at which Landlord would lease space in the Building comparable to the Market Base Rental Rate determined by Landlord and elects Premises to submit third parties if such space were available for leasing for a lease term paralleling the rate determination to appraisal, then, within seven (7) days of the date Option Term.
F. Following delivery of Tenant’s objectionDispute Notice, each party Landlord and Tenant shall appoint promptly negotiate to determine a nonmutually acceptable Base Rent rate. If the parties mutually agree upon a new Base Rent rate, such agreed rate shall be the Base Rent rate applicable during the Option Term. If the parties have not agreed within 20 days after delivery of Tenant’s Dispute Notice, then within such 20-affiliated certified M.A.I. Appraiser that has day period Landlord and Tenant shall endeavor to agree upon a qualified commercial real estate broker of good reputation, having at least five (5) years’ full-time commercial appraisal experience in Boulder County the real estate market in which the Building is located, to determine act as arbitrator (“Arbitrator”); otherwise, they shall each select, within the Market Base Rental Rateforegoing 20-day period, a real estate broker who meets the above qualifications and together such process to brokers will then select a real estate broker who meets the above qualifications and who shall be completed within twenty (20) deemed the Arbitrator. Within 10 days after the date designation of the appointment Arbitrator, Landlord and Tenant each shall give notice of its determination of the last appraiserPrevailing Market Rental Rate (defined below) supported by the reasons therefor by delivering copies to each other and the Arbitrator, under an arrangement for simultaneous exchange of such determinations. If a party does not appoint a qualified appraiser within five (5) days after The Arbitrator will review each party’s determination and select the other party has given notice one which most accurately reflects such Arbitrator’s determination of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Prevailing Market Base Rental Rate. The appraisers appointed by the parties Arbitrator shall meet promptly and attempt have no right to set the Market Base Rental Ratepropose a middle ground or any modifications of either party’s determination. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which The Arbitrator’s selection shall be made within three (3) days. All determinations of Market final and binding on both parties and the Base Rental Rate Rent rate to be paid during the Option Term shall be subject to the limitations on Market Base Rental Rate set forth greater of 95% of such determination or the per rentable square foot rate in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required effect for the last full month of the Lease term until Term of the appraisers have made their determinationLease. The Market Base Rental Rate Arbitrator’s costs incurred in question, when finally determined by the appraisers, this procedure shall be retroactive to shared equally by Landlord and Tenant and shall be fixed when the commencement Arbitrator is selected. For purposes of the extension termthis paragraph, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.“
Appears in 1 contract
Option to Extend. Upon the expiration of the Initial Term, if Tenant shall have an option is not in default, Landlord hereby grants to Tenant the right to extend and renew the term of this Lease as to all of the Premises for two (but not as to any portion or portions thereof) for one (12) additional term terms of five (5) yearsyears each. In order to exercise such option, The Tenant shall notify exercise this option to extend this Lease by giving written notice to Landlord as provided in writing this Lease at least two one hundred seventy thirty-five (270135) days prior to the expiration of the then current term. The Rent payable by Tenant to Landlord during this extension shall be as set forth in Article IV below. If Tenant fails to give written notice of extension to Landlord within the time specified, or if this Lease is terminated, any subsequent options to extend shall expire and be of no force or effect. The exercise of any option to extend shall be ineffective if Tenant is in default on the last day of the prior term. The Initial Term and any extended term may hereinafter be referred to as the “Demised Term”. In the event, Tenant is then leasing the Premises, and Tenant is not then in default of this Lease, and Landlord decides to sell the Building, Tenant has the right to purchase Building (i.e.“Refusal Option”) pursuant to the following procedures: Upon notification in writing by Landlord to Tenant that an acceptable bona fide offer to purchase the Building or an acceptable bona fide letter of intent, by September 4(“Offer”) has been received, 2007Tenant shall have ten (10) calendar days thereafter in which to notify Landlord in writing of its election to exercise purchase the optionBuilding at such purchase price and other terms contained in the Offer (“Tenant’s Offer”). If Tenant elects not to extend or fails to timely notifies Landlord in writing that it is exercising the Refusal Option, Landlord and Tenant shall execute a Purchase Agreement within five (5) calendar days after Tenant’s exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate Refusal Option upon the expiration of same terms and conditions contained in the initial TermOffer or if the Offer did not include a purchase agreement, then within fifteen (15) calendar days. Upon Tenant’s Offer is contingent upon receipt of a satisfactory title commitment, survey, Phase I environmental report and appraisal which shall be paid for by Tenant. Tenant shall be deemed to have waived such notice from Tenant exercising contingencies unless the renewal option herein granted, Landlord shall submit transaction is terminated in writing by Tenant within thirty (30) days a proposal for after Tenant’s exercise of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termRefusal Option. Tenant shall have thirty (30) days from close the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of transaction within the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided time stated in the immediately preceding sentenceOffer or if none, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice receipt by Tenant of the name later of the appraisertitle commitment, then survey, Phase I environmental report or appraisal (“Closing Date”). If Tenant fails to timely execute a Purchase Agreement or fails to close the single appraiser transaction on or before the Closing Date, then- Landlord shall be free to sell the sole appraiser and shall set the Market Base Rental RateBuilding. The appraisers appointed by the parties shall meet promptly conveyance documents, closing costs, prorations and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either other terms of the parties to this Lease, after giving five (5) days’ prior written notice to transaction shall be in strict accordance with the other party, may apply to the then president terms of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordOffer.
Appears in 1 contract
Option to Extend. Tenant Borrower shall have an the option to extend and renew the Lease as (“Option to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNNExtend”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in Loan from the immediately preceding sentenceOriginal Maturity Date to the Extended Maturity Date, Tenant upon satisfaction of each of the following conditions precedent:
(a) Borrower shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original provide Administrative Agent with written notice of Borrower’s request to exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response Option to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to Extend not more than ninety (i90) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall days but not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later less than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects prior to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven Original Maturity Date;
(7b) days As of the date of TenantBorrower’s objectiondelivery of notice of request to exercise the Option to Extend, each party and as of the Original Maturity Date, no Default or Potential Default shall appoint a non-affiliated certified M.A.I. Appraiser that has have occurred and be continuing, and Borrower shall so certify in writing;
(c) Borrower shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the Option to Extend and shall deliver to Administrative Agent, at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental RateBorrower’s sole cost and expense, such process endorsements to be completed within twenty the Title Policies as reasonably required by Administrative Agent;
(20d) days after On or before the date Original Maturity Date, Borrower shall pay to Administrative Agent, for the pro rata benefit of Lenders, an extension fee in the amount of 0.20% of the appointment total Commitments for the Loan (consisting of the Loan plus any amount of the Commitments not yet disbursed), as determined on the Original Maturity Date; provided, however, that Borrower may elect, by written notice to Administrative Agent given at the time of or prior to the exercise of the Option to Extend, to reduce the Commitments (on a pro rata basis among the Lenders) to an aggregate amount that is not less than the outstanding principal balance of the Loan;
(e) The Aggregate DSC as of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice day of the name most recent DSC Test Date prior to the Original Maturity Date shall equal or exceed 1.45; provided, however, in the event such Aggregate DSC requirement is not met, Borrower shall either (i) pay down the outstanding principal balance of the appraiserLoan prior to the Original Maturity Date to the extent necessary to meet such Aggregate DSC requirement, then in which event the single appraiser Commitments shall be reduced (on a pro rata basis) in the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty amount of such principal payment or (20ii) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either revoke its exercise of the parties Option to this Lease, after giving five (5) days’ prior Extend by written notice to the other party, may apply Administrative Agent at least thirty (30) days prior to the then president Original Maturity Date;
(f) At Administrative Agent’s option, Administrative Agent shall have received an Appraisal or Appraisals confirming to the satisfaction of Administrative Agent that the ratio of the real estate board Loan Amount to the “as is” appraised value of Denverthe Properties (in the aggregate), Colorado for the selection determined as of a third appraiser who meets date not earlier than one hundred twenty (120) days prior to the qualifications stated Original Maturity Date, does not exceed sixty percent (60%); provided, however, in this Sectionthe event such ratio exceeds sixty percent (60%), Borrower shall either (i) pay down the outstanding principal balance of the Loan prior to the Original Maturity Date to the extent necessary to reduce such ratio to sixty percent (60%), in which selection event the Commitments shall be made within three reduced (3on a pro rata basis) days. All determinations in the amount of Market Base Rental Rate shall be subject such principal payment or (ii) revoke its exercise of the Option to Extend by written notice to Administrative Agent at least thirty (30) days prior to the limitations on Market Base Rental Rate Original Maturity Date;
(g) No material adverse change shall have occurred with respect to Borrower, Guarantor or any Property (as determined by Administrative Agent in its sole discretion);
(h) All of Borrower’s representations and warranties set forth in this Agreement are true and correct in all material respects as of the first paragraph Original Maturity Date, and Borrower shall so certify in writing; and
(i) Borrower shall pay all reasonable out-of-pocket costs and expenses related to the exercise of the Option to Extend. Except as modified by the Option to Extend, the terms and conditions of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate Agreement and the remaining appraisals other Loan Documents shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last remain unmodified and in full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, force and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordeffect.
Appears in 1 contract
Option to Extend. (a) Tenant shall have an option the right to extend and renew the initial Term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional renewal term commencing on the day following the last day of five the Initial Term and ending and expiring on October 31, 2025 (5the “Renewal Term”), by delivering written notice of the exercise thereof to Landlord not earlier than fifteen (15) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy months nor later than nine (2709) days prior to months before the expiration of the Initial Term, TIME BEING OF THE ESSENCE. Tenant’s right to renew this Lease is conditioned upon the following requirements: (i) Tenant is the originally named Tenant hereunder at the time of such exercise and at the commencement of the Renewal Term (i.e.for purposes of this Article, by September 4, 2007the term “Tenant” shall mean and refer only to the originally-named Tenant under the Lease); (ii) no default exists either at the time of its election to such exercise or at the option. If Tenant elects not to extend or fails to timely exercise its option, time being commencement of the essenceRenewal Term; (iii) Tenant is occupying, and using for its own business, all or substantially all of the option Premises at the time of such exercise and upon the commencement of the Renewal Term; and (iv) Tenant’s written notice of such exercise is accompanied by the most recent financial statements of Tenant in the form prescribed by the Landlord. Tenant shall lease the Premises during the Renewal Term in its then‑current “AS-IS” condition, and Landlord shall have no obligation to perform any work to the Premises to prepare the Premises for Tenant’s use and occupancy, or to provide Tenant with any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements.
(b) The Annual Base Rent payable by Tenant to Landlord during the first year of the Renewal Term shall be two and one-half (2.5%) percent above the then escalated Annual Base Rent payable by Tenant during the last year of the Initial Term and such Annual Base Rent shall escalate and increase thereafter annually during the Renewal Term by two and one-half (2.5%) percent during each year of the Renewal Term.
(c) Landlord and Tenant shall promptly execute an amendment to this Lease evidencing any extension of the Term and the determination of Base Rent for the Renewal Term pursuant to this Article, but no such amendment shall be necessary in order to make the provisions of this Article effective.
(d) Tenant’s right to renew this Lease shall automatically terminate and be of no further force and effect and if: (i) this Lease shall terminate upon the expiration or Tenant’s right to possession of the initial Term. Upon receipt Premises is terminated; (ii) Tenant assigns its interest in this Lease or sublets any portion of such notice from the Premises; (iii) if Tenant exercising is in default of any of the renewal option herein grantedterms or conditions of this Lease or (iv) if, Landlord shall submit in writing within thirty (30) days a proposal for of its receipt of the then current Market Base Rental Rate required financial statements, Landlord determines, in its sole but reasonable discretion, that the financial condition or creditworthiness of Tenant has materially deteriorated since the date hereof.
(per rentable square foot per annum, “NNN”e) for the renewal term. [Intentionally omitted.]
(f) Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not no further right to extend the term Term following the expiration of the Lease Renewal Term.
(g) Except as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraphArticle, “Market Base Rental Rate” this Lease and all the covenants, agreements, terms, provisions and conditions thereof shall mean as of any date remain in effect during the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factorsRenewal Term, including, without limitation, useTenant’s obligation to pay Additional Rent and electricity charges as provided in the Lease.
(h) All notices, location mailings and documents to be given, executed and/or floor level delivered by Landlord and/or Tenant hereunder shall be given, executed and/or delivered in accordance with the provisions of Article 15 of this Lease and same must be given within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate periods set forth in the first paragraph of this Section. Each Article, with time being of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordessence.
Appears in 1 contract
Sources: Lease (Radius Health, Inc.)
Option to Extend. (a) Provided that Tenant is not in default hereunder either at the time of exercise or at the time the extended term commences Tenant shall have an the option to extend and renew the initial term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five three (53) yearsyears ("Option Period") on the same terms covenants and conditions provided herein except that upon such renewal the monthly installments of Annual Basic Rent due hereunder shall be determined at the time notice to extend is given. In order to exercise such option, Tenant shall notify exercise its option by giving Landlord in writing at least two hundred seventy written notice (270"Option Notice") no later than ninety (90) days prior to the expiration of the Lease Term initial term.
(i.e., by September 4, 2007b) The monthly installments of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal Annual Basic Rent for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which Option Period shall be determined as set forth herein, follows:
(i) Within fifteen (15) business days after Landlord's receipt of the Option Notice the parties shall attempt to agree on the monthly rent for the Option Period in question based upon ninety-five percent (95%) of the then fair market rental value of the Premises. If the parties agree on the monthly rent for the Option Period within such fifteen (15) day period they shall immediately execute an amendment to this Lease stating the monthly rent for the Option Period. In no event shall ninety-five percent (95%) of the then fair market monthly rental value of the Premises for the Option Period be less than the monthly installments of Annual Basic Rent last payable under the Lease.
(ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share The "then fair market rental value of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” Premises" shall mean the fair market monthly rental value of the premises as of any date the then annual net rental rate (exclusive commencement of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, Option Period taking into account all relevant factors, including, without limitation, use, location and/or floor level within consideration the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age uses permitted under this Lease the quality size design and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes Premises and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty comparable buildings located within a one (301) days after the date Landlord notifies Tenant mile radius of the Market Base Rental Rate, objects to Premises. In no event shall ninety-five percent (95%) of the Market Base Rental Rate determined by Landlord and elects to submit then fair market monthly rental value of the rate determination to appraisal, then, within Premises for the Option Period be less than the monthly installments of Annual Basic Rent last payable under the Lease.
(iii) Within seven (7) days after the expiration of the date of Tenant’s objection, fifteen (15) day period each party at its cost and by giving notice to the other party shall appoint a non-affiliated certified M.A.I. Appraiser that has real estate appraiser or commercial leasing salesperson ("Appraiser") with at least five (5) years’ ' full-time commercial appraisal or leasing experience in Boulder County the area in which the Premises are located to determine appraise and set the Market Base Rental Rate, such process then fair market monthly rent for the Premises for the Option Period.
(c) If Tenant objects to the monthly rent that has been determined Tenant shall have the right to rescind its exercise of the option to extend and have this Lease expire at the end of the initial term provided that Tenant pays for all reasonable costs incurred by Landlord in connection with the appraisal procedure. Tenant's election to allow this Lease to expire at the end of the initial term must be completed exercised by delivering written notice of exercise to Landlord within twenty ten (2010) days after the date rent determination procedure has been completed and Tenant has received notice of the appointment monthly rent as determined by appraisal. If Tenant does not so exercise its election to terminate this Lease within the ten (10) day period the initial term of this Lease shall be extended as provided in this paragraph. Notwithstanding the foregoing if Tenant elects to so rescind exercise of its option to extend and at the time of such election there are less than ninety (90) days remaining on the initial term of the last appraiser. If a party does Lease then the termination of this Lease shall not appoint a qualified appraiser within five be effective until ninety (590) days after the other party has given Landlord's receipt of Tenant's notice of rescission. During any period that the name term of this Lease is so extended beyond the appraiser, then the single appraiser original termination date Tenant shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue required to pay the applicable Base Rent required for the last full month amount of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally monthly rent determined by the appraisers, shall be retroactive pursuant to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. appraisal procedure.
(d) This option to extend may and any rights granted to Tenant hereunder shall be personal to Tenant and any of its affiliates and subsidiaries. No rights granted to Tenant pursuant to this paragraph shall be in any way applicable to subtenants or assignees of Tenant unless such subtenant or assignee is an affiliate or subsidiary of Tenant.
(e) Provided that Tenant has not be exercised and been in default under the Lease terms of this lease during the initial lease term, Landlord shall not be extended if Landlord has given refund to Tenant notice the Ten Thousand Dollar ($10,000.00) deposit, with interest set forth in section 5 of default which default is not cured within any applicable cure periods or waived by Landlordthis lease.
Appears in 1 contract
Sources: Office Building Lease (Ayurcore Inc)
Option to Extend. Tenant shall have an the right and option (the "Extension Option"), which said option and right shall not be severed from this Lease or separately assigned, mortgaged or transferred, to extend and renew the Lease as to all of the Premises initial Term for two (but not as to any portion or portions thereof) for one (12) additional term consecutive periods of five (5) years. In order years each (hereinafter referred to exercise such optionas the "Extension Periods"), provided that (a) Tenant shall notify give Landlord in writing notice of Tenant's exercise of such option at least two hundred seventy six (2706) days full calendar months prior to the expiration of the initial Term for the first (5) year extension and at least six (6) full calendar months prior to the expiration of the first Extension Period for second five (5) year extension and (b) Tenant shall not be in default (beyond expiration of applicable notice and cure periods, if any) in the performance or observance of any of the terms and provisions of the Lease on the part of Tenant to be performed or observed at the time of giving the applicable notice and the commencement of the applicable Extension Period. Except for the amount of Rent, all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the Extension Period, except that (i) there shall be no further option to extend the Term and (i.e., by September 4, 2007ii) of its election Landlord shall not be obligated to exercise make or pay for any improvements to the optionPremises. If Tenant elects not shall give notice of its exercise of the option to extend in the manner and within the time period provided aforesaid for either Extension Period, the Term shall be extended upon the giving of such notice without the requirement of any further attention on the part of either Landlord or fails Tenant. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a) or (b) above. If Tenant shall fail to give timely notice of the exercise its optionof such option as aforesaid, Tenant shall nave ▇▇ right to extend the Term of this Lease, time being of the essenceessence of the foregoing provisions. Any assignment of this Lease by Tenant, any subletting of all or any part of the option shall automatically terminate Premises and be any termination of no further force and effect and this Lease shall terminate upon this Extension Option and all rights granted to Tenant under this Section 26, unless such assignment or subletting is permitted under Section 9 of this Lease. The Rent payable for either Extension Period shall be the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty Fair Market Rent (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”as said term is hereinafter defined) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean Premises as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidsubject Extension Period. In no event may either Landlord or Tenant elect not to extend determining Fair Market Rent, the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease following factors, among others, shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.be
Appears in 1 contract
Sources: Industrial Lease Agreement (PCD Inc)
Option to Extend. Tenant shall have an is given a one-time option to extend the initial term on all the provisions, covenants, rights and renew the Lease as obligations contained in this Lease, except with respect to all of the Premises (but not as to any portion or portions thereof) Basic rent payable, for one (1) additional term of five (55)-year period beginning immediately following the initial Lease term, by giving written notice of the exercise of the option (the "Option Notice") years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy not less than one (2701) days year prior to the expiration of the original Lease Term (i.e.term.
A. If Tenant is in default on the date of giving the Option Notice, by September 4and Tenant does not cure such default as provided for in Paragraph 22 of the Lease, 2007) the Option Notice shall be void and of its election to exercise the optionno effect. If Tenant elects is in default on the date the Option Term is to commence, and Tenant does not to extend or fails to timely exercise its option, time being cure such default as provided for in Paragraph 22 of the essenceLease, then, at the option sole election of Landlord, such term shall automatically terminate and be of no further force and effect not commence and this Lease shall terminate upon expire at the expiration end of the initial Term. Upon receipt term.
B. The Basic rent payable during the Option term shall be equal to the then prevailing fair market rental value of such notice from the Premises as determined with reference to comparable buildings in the area, as Landlord and Tenant exercising may agree, in no event, however, shall basic rent payable during the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal term be less than the last month's basic rent for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the initial term of the Lease as provided in lease.
C. Following Landlord's receipt of the immediately preceding sentenceOption Notice, Landlord and Tenant shall be deemed in good faith proceed to have elected to extend determine the Lease Term for appropriate Basic Rent rate applicable, as outlined in Para▇▇▇▇▇ ▇▇▇. ▇▇ Landlord and Tenant do not agree on the period specified in Tenant’s original notice of exercise of fair market rental value within a 60-day period, then the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which fair market value shall be determined as set forth hereinby a local, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of licensed commercial real estate taxes, utilities agent or appraiser acceptable to both Landlord and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would Tenant within an additional 30 day period.
D. If the parties hereto fail to agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space fair market rate, as specified in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisalParagraph 46C above, then, within seven (7) days of the date of Tenant’s objectionan additional 10 day period, Landlord and Tenant shall each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time select an additional licensed commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole real estate agent or appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate three together, made within 30 days of their selection, shall include be binding upon both Landlord and Tenant as to the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordfair market rate.
Appears in 1 contract
Option to Extend. Tenant Lessee shall have an option the right, subject to the provisions hereinafter provided, to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) yearsyears on the terms and provisions of this Article. In order Such five-year renewal period is sometimes herein referred to as the "Renewal Term". The conditions of such Renewal Term shall be as follows:
(a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited in this Lease, at the time of exercise of the right of renewal, but Lessor shall have the right at its sole discretion to waive the non-default conditions herein.
(b) That such optionRenewal Term shall be on the same terms, Tenant covenants and conditions as in this Lease; provided, however, the annual Base Rent for such Renewal Term shall notify Landlord be an amount equal to ninety-five percent (95%) of the fair market rental rate for such space on the date such renewal term shall commence in relation to comparable (in quality, location and size) space located within a five (5) mile radius of the Property. The determination of such fair market rental rate for the Premises shall be made by Lessor and Lessee no later than the date that is eight (8) months prior to commencement of the Renewal Term. Provided Lessee has properly elected to renew the term of this Lease, and if Lessor and Lessee fail to agree at least eight (8) months prior to commencement of the Renewal Term upon the fair market rental rate of the Premises, the fair market rental rate of the Premises shall be determined by appraisal in accordance with the provisions of Article XXXII ("Appraisal") hereof. Notwithstanding anything to the contrary contained in this Article, in no event shall the Base Rent of the Premises for the Renewal Term be less than the Base Rent payable by Lessee under the terms of this Lease immediately prior to commencement of such Renewal Term.
(c) That Lessee shall exercise its right to the Renewal Term provided herein, if at all, by notifying Lessor in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not right to extend or fails to timely exercise its option, time being renew the term of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon no later than nine (9) months prior to the expiration end of the initial ten-year term. Upon notification with respect to such renewal, and for one month thereafter, the parties hereto shall make a good faith effort to agree upon the fair market rental rate of the Premises for the Renewal Term. Upon receipt of such notice from Tenant exercising In the renewal option herein granted, Landlord shall submit in writing event that Lessor and Lessee fail to agree within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the one month time period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraphsubparagraph (c), “Market Base Rental Rate” shall mean as of any date the then annual net fair market rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of the Premises for such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age Renewal Term shall be determined by appraisal in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits manner set forth in Article XXXII hereof. Any determination by appraisal or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed any agreement reached by the parties shall meet promptly hereto with respect to such fair market rental rate and attempt to set the Market resulting Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either Rent of the Premises for the Renewal Term shall be expressed in writing and shall be executed by the parties hereto, and a copy thereof delivered to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president each of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordparties.
Appears in 1 contract
Sources: Lease Agreement (Syntellect Inc)
Option to Extend. (a) Subject to the provisions of section 60 below, Landlord hereby grants to Tenant shall have an the option to extend and renew ("Option to Extend") the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) yearsyears ("Option Term*). In order The Option to exercise such optionExtend must be exercised, Tenant shall notify if at all, by written notice ("Option Notice" received by Landlord in writing at least not later than one hundred eighty (180) days and not earlier than two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) initial term of its election this Lease. Provided that Tenant has properly exercised an Option to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essenceExtend, the option shall automatically terminate and be term of no further force and effect and this Lease shall terminate upon the expiration be extended for five (5) years and all of the initial Termterms, covenants and conditions of the Lease shall remain unmodified and in full force and effect, except that the Annual Basic Rental shall be modified as set forth in subsection (b) below.
(b) The Annual Basic Rental payable for the Option Term shall be an amount equal to the fair market rental value of the Premises, as determined herein, but shall in no event be less than the Annual Basic Rental payable for the last month of the basic term of the Lease. Upon receipt Landlord shall determine the fair market rental value of the Premises by using its best good faith judgment. Such fair market rental value shall be determined by Landlord in accordance with the projected (to the commencement of such notice from Tenant exercising Option to Expand) prevailing market rentals for similar space in Class "A" commercial office buildings in the renewal option herein grantedOrange County Airport marketplace. in determining such fair market rental value, Landlord shall submit specifically exclude any consideration of Tenant's occupancy or use of the Premises in writing place as of the end of the term. Landlord shall use its best efforts to deliver to Tenant written notice of such fair market rental value and the new Annual Basic Rental applicable to such Option to Expand within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termafter Landlord's receipt of an Option-Notice. Tenant shall have thirty fifteen (3015) days from the ("Tenant's Review Period") after receipt of said Landlord's notice from of such new Annual Basic Rental to reasonably object thereto in writing. In the event Tenant objects to such new Annual Basic Rental submitted by Landlord, Landlord and Tenant shall attempt in good faith to notify Landlord agree upon such new Annual Basic Rental within fifteen (15) days following Tenant's Review Period (the *Outside Agreement Date"), then each party's determination shall be submitted to arbitration in accordance with Paragraph (C) hereof. Failure of Tenant to so object in writing within such period shall conclusively be deemed its approval of the new Annual Basic Rental determined by Landlord as set forth above.
(i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate Landlord and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall each appoint one arbitrator who shall by profession be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of a real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a appraiser who shall have been active over the five (5) year term) period ending on the date of space in comparable first class multi-tenant office buildings of comparable size, location and age such appointment in the appraisal of commercial properties in the Orange County of Boulder, Colorado, at Airport Marketplace. Each such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level arbitrator shall be appointed within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, Outside Agreement Date.
(ii) The two arbitrators so appointed shall within seven fifteen (715) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not Last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified appraiser under the same criteria set forth hereinabove for qualification of the initial two arbitrators.
(iii) Landlord and Tenant shall each submit a figure for the new Annual Basic Rental for the Premises to the appointed arbitration. The determination of the arbitrators shall be limited solely to the issue of whether Landlord's or Tenant's submitted new Annual Basic Rental for the Premises is the closest to the actual new Annual Basic Rental for the Premises as determined by the arbitrators, taking into account the requirements of Paragraph (b) and this Paragraph (C) regarding same.
(iv) The three arbitrators shall within five thirty (530) days after the other party has given notice of the name appointment of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by third arbitrator reach a decision as to whether the parties shall meet promptly use Landlord's or Tenant's submitted new Annual Basic Rental, and attempt to set shall notify Landlord and Tenant thereof. Such decision shall be based upon the Market Base Rental Rate. If they are unable to agree on projected prevailing fair market rental for similar space in Class "A" commercial office buildings in the Market Base Rental Rate within twenty Orange County Airport Marketplace.
(20v) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either The decision of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president majority of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection three arbitrators shall be made within three binding upon Landlord and Tenant.
(3vi) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect fails to appoint an arbitrator within the time period in Paragraph (c)(I) hereinabove, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator's decision shall be binding upon Landlord and Tenant.
(vii) If the two arbitrators fail to agree upon and appoint a third arbitrator, both arbitrators shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association.
(viii) In the event that the new Annual Basic Rental is not established prior to extend end of the initial term of the Lease based upon or the Market Base Option Term then in effect, the Annual Basic Rental Rate established immediately payable at the commencement of such Option Tenn shall be the Annual Basic Rental payable in the immediately preceding month. Notwithstanding the above, once the fair market rental is determined in accordance herewith. This option with this section, the Tenant shall be required to extend may not be exercised pay to Landlord, with the next payment of rental due hereunder, the aggregate amount by which such fair market rental for such month and all prior months during the Lease shall not be extended if Option Term exceeds the aggregate Annual Basic Rental paid to Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordfor such months pursuant to this subsection.
Appears in 1 contract
Option to Extend. Tenant Provided the LESSEE is not in material default hereunder after any notice and grace periods. LESSEE shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional five (5) year option to extend the lease term at a rent equal to the greater of the following: (a) market rate for equivalent lab space in similarly located buildings in Lexington within one (1) mile of the Leased Premises (including, without limitation, taking into consideration the age and condition of the building) ("Market Rate"); or (b) the rent then in effect as of the expiration date of the then current lease term. In no event shall the rent for the option term be less than the current total rent at the end of the initial term. LESSEE must give LESSOR written notice it is exercising its extension option no later than nine (9) months prior to the expiration of the then cu rent lease term. If LESSEE notifies LESSOR as provided herein. LESSOR shall notify LESSEE of its good faith estimate of the Market Rate for the extended tetra; then within thirty (30) days of receiving the LESSOR'S Market Rate for the extended term the LESSEE shall either: (1) deliver a written notice accepting the rent rate, and thereafter the parties shall fully execute a Lease amendment within thirty (30) days from the date the LESSOR receives LESSEE'S written notice accepting the rent rate, which lease amendment shall be on the same terms and conditions as the Lease Agreement except as otherwise provided in this Paragraph 26 and except that the base rent shall be the Market Rate and the lease term shall be extended by five (5) years; or (2) deliver a written notice disagreeing with the LESSOR'S Market Rate for the extended term, said notice to include LESSEE'S good faith estimate of the Market Rate for the extended term, and the LESSOR and LESSEE shall attempt to agree upon the rent rate using their best good-faith efforts. If LESSOR and LESSEE fail to reach an agreement within thirty (30) days following LESSOR'S receipt of LESSEE'S above-mentioned written notice of disagreement ("Outside Agreement Date"), then: (i) LESSOR and LESSEE shall each appoint, at their own cost and expense, within ten (10) business days of the Outside Agreement Date, one arbitrator who shall by profession be a current commercial real estate broker or appraiser of comparable properties in Lexington within one (1) mile from the Leased Premises, and who has been active in such field over the last five (5) years. In order to exercise such optionThe two (2) arbitrators shall confer and within thirty (30) days from the date the last arbitrator was appointed, Tenant shall notify Landlord each recommend a Market Rate in writing at least to both parties. In the event their recommendation is joint or equal, then this recommendation shall be the rent rate for the extended terra; and (ii) In the event the arbitrators recommendation of the Market Rate differs by five percent (5%) or less, then the average shall be the rent rate for the extended team; and (iii) In the event the arbitrators recommendation differs by more than five percent (5%), then the two hundred seventy arbitrators so appointed shall, within five (2705) business days of the date of the last written recommendation, agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two arbitrators. The third arbitrator shall, within fifteen (15) days prior after his/her appointment, recommend a Market Rate in writing to both parties, and the two (2) closest of the three (3) recommendations shall then be averaged to establish the rent rate for the extended term: and (iv) If either LESSOR or LESSEE fails to appoint an arbitrator within ten (10) business days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify LESSOR and LESSEE thereof, and such arbitrator's decision shall be binding upon LESSOR and LESSEE; and (v) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, and this matter has not been otherwise resolved, then the appointment of the third arbitrator shall be made by the American Arbitration Association (or, if not available, an equivalent arbitration association) subject to the expiration instructions set forth in this Paragraph 26; and (vi) The cost of arbitration, as well as the above-mentioned third arbitrator, shall be paid by LESSOR and LESSEE equally; and (vii) Notwithstanding the above, in no event shall the Market Rate or rent for the option term be less than the current total rent at the end of the initial term. In the event the rent for the option term is being established in accordance with Paragraph 26(2) above, then the parties shall fully execute a lease amendment within thirty (30) days from the date the rent rate is established in accordance with the above, which lease amendment shall be on the same terms and conditions as the Lease Term Agreement except as otherwise provided in this Paragraph 26 and except that the base rent shall be the Market Rate and the lease term shall be extended by five (i.e., by September 4, 2007S) of its election to exercise years front the option. If Tenant elects not date the Lease Agreement would have expired had the option to extend not been exercised. LESSEE shall be responsible for all payments necessary to maintain a security deposit equivalent to one (1) month's base rent. All other terms and provisions under the Lease Agreement, as amended, shall continue through the extended lease term. In the event the LESSEE does not provide payment or fails to timely exercise its option, time being of the essencehas not delivered an executed lease amendment or written notice as provided in this Paragraph 26 and subparagraphs (1) and (2) above, the LESSEE shall be deemed to have waived its option shall automatically terminate and be of no further force and effect to extend the lease term and this Lease Agreement shall terminate upon the expiration of the initial Termthen current term. Upon receipt of such notice from Tenant exercising Notwithstanding the renewal option herein grantedabove, Landlord shall submit LESSEE accepts the Leased Premises in writing within thirty (30) days a proposal its current "AS IS" condition and acknowledges that the Leased Premises are currently occupied by the LESSEE and that the Leased Premises, as delivered and currently constituted, is suitable for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termLESSEE'S intended use. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon LESSEE acknowledges that all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances grantedwork, if any, qualitycontemplated in the Lease Agreement and this First Amendment to the Lease Agreement, age and location including but not limited to the Exhibit B thereto, to be performed by the LESSOR has been completed to the full satisfaction of the applicable buildingLESSEE. The Parties acknowledge that the Lease Agreement and this First Amendment represent the entire agreement between the Parties and that no other modification, rental concessionswritten or otherwise, exists between the time Parties. The normal rule of construction that any ambiguities be resolved against the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each drafting party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month interpretation of the Lease term until Agreement or this First Amendment or any exhibits or amendments thereto. All other terms and provisions wider the appraisers have made their determinationLease Agreement shall remain unchanged, are in full force and effect, and are hereby ratified and affirmed. The Market Base Rental Rate in questionLESSOR and LESSEE hereby acknowledge and confirm that, when finally determined by the appraisers, shall be retroactive to the commencement best of their respective knowledge, neither the LESSOR nor the LESSEE is in default of any other term or condition of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidLease Agreement. In no the event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised of a conflict between this First Amendment and the Lease Agreement, the terms of this First Amendment shall govern. All capitalized terms used but not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddefined herein shall have the same definitions ascribed to such terms in the Lease Agreement.
Appears in 1 contract
Option to Extend. Tenant shall have an option Lessor hereby grants to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for Lessee one (1) additional option to extend the Lease term for a period of five (5) years. In order The option to extend is subject to the provisions of Paragraph 39 of the printed portion of this Lease. Lessee may exercise such option, Tenant shall notify Landlord in writing the option to extend by giving written notice of exercise to Lessor at least two hundred seventy six (2706) days months, but not more than twelve (12) months, prior to the expiration of the Lease Term Original Term. The option extension period, if exercised, shall be upon the same terms and conditions as the Original Term, except that there shall be no additional option to extend and the Base Rent during the option period shall be equal to one hundred percent (i.e., by September 4, 2007100%) of the then fair market Base Rent of the Premises as determined by agreement between Lessor and Lessee. Between the six (6) months period, which is not more than twelve (12) months nor less than six (6) months prior to the Commencement Date of the extended term, Lessor shall, upon request by Lessee, negotiate in good faith with Lessee concerning the market lease rate for the extended Term. If the parties cannot agree within one hundred fifty (150) days prior to the commencement of the extended term, then the market lease rate (and periodic increases) shall be determined by appraiser(s) selected and governed by the Rules of the American Arbitration Association. All other terms and conditions contained in this Lease (excluding any further option to extend) shall remain in full force and effect and shall apply during the extended term. The cost of the appraisal shall be shared equally by Lessor and Lessee. In no event shall the _________________________ * If Lessee exercises the expansion option, Lessor shall not unreasonably withhold or delay its election consent to any tenant improvements or alterations proposed to be made to the expansion space by Lessee at Lessee's expense, provided that such tenant improvements or alterations are substantially comparable to the tenant improvements in the existing Premises. initial monthly Base Rent for the option period be less than the Base Rent payable by Lessee for the last full calendar month of the initial lease term. Failure by Lessee to exercise the option. If Tenant elects not option to extend or fails in a timely manner shall cause the option to timely exercise its optionlapse, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Sources: Standard Industrial/Commercial Multi Tenant Lease (Releasenow Com Corp)
Option to Extend. Tenant shall have an option three (3) options to extend and renew the this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional an extended term of five (5) yearsyears each by giving Landlord written notice of its intention to do so not later than six (6) months prior to the expiration of the applicable Term and not more than fifteen (15) months prior to the expiration of the applicable Term; provided, however, that Tenant is not in material default beyond any applicable cure period under the Lease on the date of giving such notice. In Any termination of the Lease shall result in automatic termination of these options. The extended term shall be upon all of the terms and conditions of the Lease, except that the Minimum Rent shall adjust to Fair Market Rental as provided herein. The Minimum Rent for the extended term shall be calculated as follows:
A. Landlord and Tenant hereby acknowledge and agree that the Minimum Rent during the extended term shall be the “Fair Market Rental” for the Property, as determined in accordance with this Section, but in no event less than the prior Minimum Rent of the preceding month of the Lease Term prior to such extension. Following receipt by Landlord of Tenant’s notice to exercise the option, Landlord shall provide Tenant with written notice of its determination of Fair Market Rental for the Premises. The parties shall have until the date that is five (5) months prior to the date that the Lease Term will expire in order to exercise such optionagree on Minimum Rent during the extended term.
B. If the parties fail to agree on the Minimum Rent for the extended term during that period, then the Fair Market Rental shall be established by appraisal. Landlord and Tenant shall notify Landlord in writing each appoint one appraiser at least two hundred seventy five (2705) days months prior to the expiration of the Lease Term (i.e.Term; provided, by September 4however, 2007) of its election to exercise the option. If Tenant elects not to extend or that if either party fails to timely exercise its optiondesignate an appraiser within the time period specified, time being of then the essenceappraiser who is designated shall conclusively determine the Fair Market Rental.
C. If two (2) appraisers are designated, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord then they shall submit in writing within thirty (30) days a proposal for their appraisals of the then current Fair Market Base Rental Rate (Rental. Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per rentable square foot per annumof Rentable Area of space that is then being charged for space located in buildings in the vicinity of the Premises that are comparable in quality and offer similar amenities to the building, “NNN”including the extensive parking ratio under this Lease and involving leases with similar terms and conditions, and involving the use of the premises for similar purposes allowed under this Lease. The spaces used for comparison shall be comparable in size, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of Tenant.
D. Should the two appraisers be unable to agree within said thirty (30) for days, the renewal termtwo appraisers shall each submit an independent written appraisal and together they shall designate one (1) additional person as appraiser within five (5) days following the expiration of said thirty (30) day period; provided however, that if the difference between the two appraisals is ten percent (10%) or less of the lowest appraisal, then an additional appraiser shall not be designated and the Fair Market Rental shall equal the average of the two (2) appraisals that are submitted. Tenant The third appraiser shall have submit an independent written appraisal within thirty (30) days from following his or her appointment. If the receipt two appraisers cannot agree upon a third appraiser, then either party hereunder may request that the presiding Judge of said notice from Landlord the Maricopa County Superior Court appoint such third appraiser. The Fair Market Rental shall be equal to notify Landlord the average of the two (2) written appraisals which are closest, and the third (3rd) appraisal shall be disregarded.
E. Each party shall bear the costs of the appraiser appointed by it. If three (3) appraisers are appointed, each party shall bear the cost of the appraiser appointed by it and the parties shall share equally in writing the cost of the third appraiser. No person shall be appointed or designated an appraiser unless he or she is (i) Tenant’s acceptance an independent appraiser who is a currently certified member of the proposed Market Base Rental RateAmerican Institute of Real Estate Appraisers (with MAI designation) and unless he or she has at least five (5) years experience as an appraiser in Maricopa County, or (ii) Tenant’s rejection a real estate broker with at least ten (10) years experience in leasing of space in the greater Phoenix area.
F. In the event that the Fair Market Rental is not established before the commencement of the Market extended term, Tenant shall continue to pay the Base Rental Rate and election to initiate Rent in effect as of the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term end of the Lease as provided in Term; when the immediately preceding sentenceFair Market Rental has been established, Tenant the new Base Rent shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise retroactively effective as of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all beginning of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicableextended term, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth Landlord any deficiency with in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant establishment of the Market new Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordRent.
Appears in 1 contract
Sources: Lease Agreement (Universal Technical Institute Inc)
Option to Extend. A. Tenant shall have an option the right to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) Term for one additional period of forty-eight (48) or sixty (60) months (the "Renewal Term") If:
1. Landlord receives notice of exercise, Including Tenant's election of a fortyeight (48) additional term of five or sixty (560) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy month Renewal Term (270"Initial Renewal Notice") days not earlier than nine (9) and no later than seven (7) full calendar months prior to the expiration of the initial Lease Term and Binding Notice (i.e.hereinafter defined) not more than fifteen (15) days following Tenant's receipt of Landlord's determination of Prevailing Market rate (hereinafter defined); and
2. Tenant is not in default beyond any applicable cure period(s) under the Lease at the time that Tenant delivers its Initial Renewal Notice and Binding Renewal Notice; and
3. No part of the Premises is sublet, other than pursuant to Corporate Transfer, at the time that Tenant delivers its Initial Renewal Notice and Binding Renewal Notice; and
4. The Lease has not been assigned, other than pursuant to Corporate Transfer, on the date that Tenant delivers its Initial Renewal Notice and on the date Tenant delivers its Binding Renewal Notice; and
5. Tenant executes and returns the Renewal Amendment (hereinafter defined) within fifteen (15) days after its submission to Tenant.
B. The initial Base Rental rate per rentable square foot for the Premises during the Renewal Term shall equal the greater of (1) the annual Base Rental rate per rentable square foot for the Premises for the last year of the initial Lease Term; and (2) the Prevailing Market rate (hereinafter defined) per rentable square foot. If Base Rental is determined pursuant to paragraph B(2) above, the Base Rental rate per square foot shall increase at such times and in such amount assumed by September 4Landlord in its determination of Prevailing Market.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the Premises during the Renewal Term in accordance with Exhibit B-2 of the Lease; provided, 2007in the event Base Rental is determined pursuant to paragraph (B(2) above, the Base Year shall be amended to be the calendar year in which the Renewal Term commences.
D. Within fifteen (15) days after receipt of its election to exercise Tenant's Initial Renewal Notice, Landlord shall advise Tenant of the optionapplicable Base Rental rate for the Premises for the Renewal Term, as determined in Landlord's reasonable and good faith judgment. If Tenant elects not desires to lease the Premises for the Renewal Term at such rate. Tenant shall give Landlord final binding written notice ("Binding Notice") of Tenant's exercise of its option to extend or no later than six (6) months prior to the expiration of the initial Lease Term. If Tenant fails to timely exercise its optiongive Binding Notice by such date, time being of the essence, the Tenant's renewal option shall automatically terminate thereupon be deemed to be null and be void and of no further force and effect effect.
E. If Tenant is entitled to and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantedproperly exercises its Renewal Option, Landlord shall submit prepare an amendment (the "Renewal Amendment") to reflect changes in writing the Base Rental, Lease Term, Termination Date and other appropriate terms. The Renewal Amendment shall be:
1. sent to Tenant within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the reasonable time after receipt of said notice from Landlord the Renewal Notice; and
2. executed by Tenant and returned to notify Landlord in writing of (i) Tenant’s acceptance of accordance with paragraph A.5. above.
F. For purposes hereof, "Prevailing Market shall mean the proposed Market Base Rental Rateannual rate per square foot, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or 's reasonable and good faith judgment, for space comparable to elect not to extend the term of the Lease as provided Premises in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions Building and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject office buildings comparable to the limitations set forth Building in this paragraphthe Newport Beach-Irvine-Costa Mesa, “Market Base Rental Rate” shall mean as of any date the then California, airport area ("Comparison Area") giving appropriate consideration to annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such datefoot, escalation (including type, base year and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5stop) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances grantedabatement provisions, if any, qualitybuild-out period prior to lease commencement, age if any, the period of time between the determination of Prevailing Market an commencement of the term for such space, brokerage commissions, length of lease term, size and location of the Premises being leased, work or tenant allowances, if any, and other applicable building, rental concessions, terms and conditions of tenancy under leases and renewal and extension amendments being entered into at or about the time that Prevailing Market is being determined, including the particular rate under consideration became effective, size of tenant, and credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date worthiness of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. Tenant shall have an the option to extend and renew the term of the Lease as to all of (the Premises (but not as to any portion or portions thereof“Option”) for one two (12) additional term periods of five (5) years. In order years each (each such period an “extension term”) provided Tenant gives Landlord and Landlord is in receipt thereof a written notice delivered by U.S. Postal Service, certified mail return receipt requested, of Tenant’s election to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) the Option a minimum of 180 days and a maximum of 270 days prior to the expiration Expiration Date of the Term of this Lease (or the then applicable extension term, to the extent the Term has been previously extended by the terms of this Article). The terms and conditions governing each such extension term will be the same as those for the Initial Lease Term, except and to the extent modified by the terms of Paragraphs E and F, below. Time is of the essence with respect to each and every term of this article.
A. The Option is personal to the Tenant originally named in the Lease and may not be exercised by or be assigned to, voluntarily or involuntarily, any other person or entity. The Option herein granted to Tenant may not be assigned with any permitted assignment of this Lease or sublease of the Premises (or any portion thereof).
B. Tenant shall not have the right to exercise the Option, notwithstanding anything set forth above to the contrary:
1. During any period of time commencing from the date Landlord gives to Tenant a written notice that Tenant is in default under any provision of this Lease, and continuing until the default alleged in said notice is cured;
2. During the period of time commencing on the day after a monetary obligation to Landlord is due from Tenant and unpaid (without any necessity for notice thereof to Tenant) and continuing until the obligation is paid;
3. At any time after the occurrence of any default described in Paragraph 26 of the Lease Term other than those described in the preceding paragraphs (i.e., by September without any necessity of Landlord to give notice of such default to Tenant); or
4, 2007) . In the event that Landlord has given to Tenant two or more notices of its election default or a late charge has become payable under the Lease during the twelve-month period prior to the time that Tenant intends to exercise the option. If Tenant elects Option.
C. The period of time within which the Option may be exercised shall not be extended or enlarged by reason of Tenant’s inability to extend or fails to timely exercise its option, time being the Option because of the essenceforegoing provisions of Paragraph B, even if the option effect thereof is to eliminate Tenant’s right to exercise the Option.
D. All rights with respect to the Option shall automatically terminate and be of no further force or effect even after Tenant’s due and effect and this Lease shall terminate upon the expiration timely exercise of the initial Term. Upon receipt of Option, if, after such notice from Tenant exercising exercise, but prior to the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance commencement of the proposed Market Base Rental Rateapplicable extension term, or (ii1) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s pay to Landlord a monetary obligation of Tenant for a period of ten days after such obligation become due (without any necessity of Landlord to give notice or thereof to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to ); (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii2) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject fails to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint cure a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed monetary default within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) 30 days after the date the second appraiser has been appointedLandlord gives notice to Tenant of such default; or (3) Landlord gives to Tenant two or more notices of default or a late charge becomes payable for any such default, they whether or not such defaults are cured.
E. The Basic Monthly Rent shall elect a third appraiser meeting be increased on the qualifications stated first day of each extension term (the “Rental Adjustment Date”) to the “fair rental value” of the Premises, determined in this paragraph within seven (7) the following manner:
1. Not later than 120 days after prior to the last day applicable Rental Adjustment Date, Landlord and Tenant shall meet in an effort to negotiate, in good faith, the two (2) appraisers are to set fair rental value of the Market Base Premises as of such applicable Rental RateAdjustment Date. If Landlord and Tenant have not agreed upon the appraisers fair rental value of the Premises at least 90 days prior to the applicable Rental Adjustment Date, the fair rental value shall be determined by appraisal as described below.
2. If Landlord and Tenant are not able to agree upon the fair rental value of the Premises within the time period prescribed in Paragraph 1, then Landlord and Tenant shall attempt to agree in good faith upon a single appraiser not later than 75 days prior to the applicable Rental Adjustment Date. If Landlord and Tenant are unable to agree on upon a single appraiser within such time period, then Landlord and Tenant shall each appoint an appraiser not later than 65 days prior to the applicable Rental Adjustment Date. Within five days thereafter, the two appointed appraisers shall appoint a third appraiser. If Landlord and Tenant agree upon an appraiser, or if either Landlord or Tenant fails to appoint its appraiser within the prescribed time period, the single appraiser appointed shall determine the fair rental value of the Premises. If both parties fail to this Leaseappoint appraisers within the prescribed time periods, after giving five (5) days’ prior written notice to then the other party, may apply to first appraiser thereafter selected by a party shall determine the then president fair rental value of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this SectionPremises. Each ▇▇▇▇▇ shall bear the cost of its own appraiser and the parties shall pay for the appraiser appointed by it and shall bear one-half of share equally the cost of appointing the single or third appraiser if applicable. Each such appraiser must have at least five years experience in the appraisal of commercial/industrial real property in the area in which the Project is located and of paying the third appraiser’s fee. The third appraiser, however selected, shall be members of a person who has not previously acted in any capacity for either partyprofessional organization such as MAI or equivalent.
3. The appraisers For the purposes of such appraisal, the term “fair rental value” shall be instructed to consider mean the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection price that a ready and willing tenant would pay, as of the third appraiserapplicable Rental Adjustment Date, as monthly rent to a ready and willing Landlord of property comparable to the third Premises if such property were exposed for lease on the open market for a reasonable period of time and taking into account all of the purposes for which such property may be used. If a single appraiser is chosen, then such appraiser shall determine the Market Base Rental Rate and all three fair rental value of the appraiser’s Market Base Rental Rates Premises. Otherwise, the fair rental value of the Premises shall be averaged excluding any single Market Base Rental Rate the arithmetic average of the two of the three appraisals which is either ten percent (10%) higher or lower are closest in amount, and the third appraisal shall be disregarded. In no event, however, shall the Basic Monthly Rent for the first year of the extension term be less than the middle appraisal Basic Monthly Rent payable by Tenant during the last year of Market Base the preceding Lease term. Landlord and Tenant shall instruct the appraiser(s) to complete their determination of the fair rental value no later than 30 days prior to the applicable Rental Rate and Adjustment Date. If, notwithstanding such instruction, the remaining appraisals shall then be averaged. If the Market Base Rental Rate fair rental value is not established for determined before the extended term prior to its commencementfirst day of an extension term, then Tenant shall continue to pay to Landlord the Basic Monthly Rent applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the Premises immediately prior to such extension term, until the fair rental value of the Premises is determined. When the fair rental value of the Premises is determined, Landlord shall deliver notice thereof to Tenant, and Tenant shall pay to Landlord, within ten days after receipt of such notice, the difference between the Basic Monthly Rent actually paid by Tenant to Landlord and the first Base new Basic Monthly Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddetermined hereunder.
Appears in 1 contract
Option to Extend. The Tenant shall have an option herein is granted the right to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) Term hereof for one (1) additional five-year term of five (5) years. In order to exercise such optionthe "Extended Term"), provided, however, that the Tenant shall notify meet all of the following conditions:
(a) Tenant shall have given written notice (the "Option Notice") to Landlord in writing at least two hundred seventy (270) days of its intent to so extend prior to six (6) months before the expiration termination of the Lease then current term.
(b) Any extension of the Term shall be under the same terms and conditions as the Original Term or as specifically outlined as pertinent to any Extended Term.
(i.e., by September 4, 2007c) The Tenant herein shall not be in default (or beyond any applicable grace period therefor) of its election to exercise any of the option. If Tenant elects not terms or conditions of this Lease, either at the time stipulated for notice of intent to extend or fails to timely exercise its option, time being at the commencement of the essenceExtended Term.
(d) Tenant shall not have made more than one Late Payment of Rent or Additional Rent in the twelve (12) month period during the Term immediately preceding the exercise of Tenant's option to extend or more than two Late Payments of Rent or Additional Rent in the twenty-four (24) month period during the Term immediately preceding the exercise of Tenant's option to extend. Each Extended Term shall be upon all the terms, conditions and provisions of this Lease, except that the option Annual Fixed Rent during the Extended Term shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration 95% of the initial Term. Upon receipt fair market rental value (the "Fair Rental Value") of the Premises as of the commencement of such notice from Extended Term, taking into consideration the then prevailing market rate for office space comparable to the Premises in terms of size of space, location of the Building, finish, building quality and otherwise on the terms and conditions of this Lease, and the Tenant exercising shall have no option to extend the renewal option herein granted, Term for any further Extended Term beyond the one provided for by this Section 12.11. Landlord shall submit in writing notify Tenant of its estimate of the prevailing fair market rent within thirty (30) business days a proposal for after the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for Tenant exercises the renewal termRenewal Term option. Tenant shall have thirty the option, within twenty (3020) business days from of the receipt Landlord's notice, to accept the Landlord's estimate, to reject Landlord's estimate and request arbitration or to withdraw its exercise of said the extension option. Failure by the Tenant to respond to the Landlord's notice from Landlord to notify Landlord in writing of within the twenty (i20) Tenant’s business day period shall be deemed an acceptance of the proposed Market Base Rental RateLandlord's estimate. In the event Tenant rejects Landlord's estimate, or then the prevailing fair market rent shall be arbitrated in accordance with the following procedure. The parties within ten (ii10) days after the Tenant’s 's rejection of Landlord's estimate shall each identify an impartial third party to serve as an arbitrator and these two arbitrators shall seek to identify one mutually acceptable impartial third party to serve as the Market Base Rental Rate and election to initiate the appraisal process set forth belowthird arbitrator. If Tenant fails either party has not designated its arbitrator to the other in a timely accept or reject fashion, then the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term determination of the Lease as provided other party's arbitrator shall be final. All such arbitrators shall be commercial real estate brokers, having current and at least fifteen (15) years' prior experience in appraising first class office space in the immediately preceding sentenceMansfield area. If the two arbitrators are unable to agree upon a third arbitrator within ten (10) days, Tenant the third arbitrator shall be deemed to have elected to extend selected by by the Lease Term for American Arbitration Association ("AAA") or any successor entity. If neither AAA or any successor exists at the period specified in Tenant’s original notice of exercise time of the renewal option at dispute, the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension third arbitrator shall be upon all selected by the largest private provider of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the dispute resolution services then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age doing business in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable Greater Boston area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than Within thirty (30) days after the date Landlord notifies Tenant parties notified as to the identity of the Market Base Rental Ratethird arbitrator, objects each of the three arbitrators shall submit its final determination of the prevailing market rate (the "Final Rent Determination") to the Market Base Rental Rate determined by Landlord other arbitrators. The two Final Rent Determinations which are closest to each other shall be averaged and elects this average shall be designated as the prevailing market rate. If the highest and lowest Final Rent Determinations are equally close to submit the rate determination to appraisal, then, within seven (7) days middle Final Rent Determination then the middle one shall be designated as the prevailing market rate. If one of the date arbitrators has not submitted its Final Rent Determination to the other arbitrators within the time limits set forth herein, the other arbitrators will designate the average of Tenant’s objection, each party their Final Rent Determinations as the prevailing market rent. The arbitrators shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five notify the parties of their decision in writing within such thirty (530) years’ full-time commercial appraisal experience in Boulder County to determine day period. All costs incurred for the Market Base Rental Rate, such process to be completed within twenty (20) days after the date services of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser arbitrator shall be borne equally by the sole appraiser and shall set the Market Base Rental Rateparties. The appraisers appointed prevailing market rate as designated by the arbitrator shall be final and binding and the parties shall meet promptly have no further recourse to such determination. Promptly after rent is determined for the Renewal Term, Landlord and attempt to set Tenant shall enter into an amendment of this Lease confirming the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either extension of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate Term and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established new rate for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordrent.
Appears in 1 contract
Option to Extend. Tenant shall have an Lessor hereby grants to Lessee the option to extend and renew the Lease as to for one additional sixty (60)-month period, commencing June 1, 2002, upon each and all of the Premises (but not as following terms and conditions:
a. Lessee gives to any portion Lessor, and Lessor actually receives, on or portions thereof) for one (after June 1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration 2001, and on or before December 1, 2001, a written notice of the Lease Term (i.e., by September 4, 2007) exercise of its election to exercise the option. If Tenant elects not option to extend or fails to timely exercise its optionthis Lease for said additional term, time being of the essence. If said notification of the exercise of said option is not so given and received, the option shall automatically terminate and be expire.
b. The provisions of no further force and effect and this Lease shall terminate upon Paragraph 39.4, including the expiration provision relating to default of Lessee set forth in Paragraph 39.4 of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantedLease, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord are conditions to notify Landlord in writing of (i) Tenant’s acceptance this option.
c. All of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection terms and condition of the Market Lease, except where specifically modified by this option, shall apply.
d. The monthly Rent for each month of the option period shall be calculated as follows: On June 1, 2002, the monthly Rent payable under Paragraph 1.5 ("Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term Rent") of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed adjusted to have elected the "Market Rental Value" of the property as follows:
15 (1) On or about February 1, 2002, Lessor and Lessee shall meet to extend the Lease Term establish an agreed upon new Market Rental Value for the period specified in Tenant’s original notice of exercise of the renewal option at term. If agreement cannot be reached, then Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the Market Base Rental Rate specified by Landlord in response to said exercise noticeValue within the next 30 days. Any such extension associated costs will be split equally between the parties. Alternatively, both Lessor and Lessee shall be upon all immediately select and pay the appraiser or broker of the terms, conditions and covenants of this Lease except as their choice to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “establish a Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level Value within the applicable buildingnext 30 days. If, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiserfor any reason, either of the parties appraisals is not completed within the next 30 days, as stipulated, then the appraisal that is completed at that time shall automatically become the new Market Rental Value. If both appraisals are completed and the two appraisers/brokers cannot agree on a Market Rental Value, then they shall immediately select a third mutually acceptable appraiser/broker to this Lease, after giving five (5) establish a third Market Rental Value within the next 30 days’ prior written notice to the other party, may apply to the then president . The average of the real estate board of Denver, Colorado for two appraisals closest in value shall then become the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of new Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s feeValue. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection cost of the third appraiserparty appraiser shall be equally split between the parties. In any event, the third appraiser new Market Rental Value shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall not be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower less than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established Rent payable for the extended term prior to its commencement, Tenant shall continue to pay month immediately preceding the applicable Base Rent required date for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordadjustment.
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease (Masimo Corp)
Option to Extend. (a) Tenant shall have an option to may, at its option, extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) Term for one (1) additional term two renewal periods of five years each (5each, a "RENEWAL PERIOD") years. In order by written notice to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270the "RENEWAL NOTICE") given no later than 120 days prior to the expiration of the Lease Term (i.e.or the prior Renewal Period, as applicable), provided that at the time of such notice and at the commencement of such Renewal Period, (i) Tenant remains in occupancy of the Property, and (ii) no uncured event of default exists under the Lease. The Base Rent initially payable during the Renewal Period shall be equal to 105% of the Base Rent in effect under the Lease immediately prior to the commencement of such Renewal Period, effective as of the first month of the Renewal Period. Such Base Rent shall subsequently continue to increase every twenty-four (24) months thereafter by September 4, 2007an amount equal to five percent (5%) of the immediately prior Base Rent amount. With respect to the first Renewal Period only, Landlord shall provide a leasehold improvement allowance of $3.00 per net rentable square foot of space within the Premises. Landlord shall not be required to provide any leasehold improvement allowance for the second Renewal Period. Except as provided in this SECTION 8, all terms and conditions of the Lease (as amended by this Amendment) shall continue to apply during the Renewal Period.
(b) If Tenant timely delivers its election to exercise Renewal Notice, Tenant and Landlord shall, within 15 days after receipt, execute a lease amendment confirming the optionBase Rent and other terms applicable during the Renewal Period. If Tenant elects not fails timely (i) to extend deliver its Renewal Notice or fails (ii) to timely exercise its optionexecute and return the required lease amendment, time being of the essence, the option then this Option to Extend shall automatically terminate expire and be of no further force and effect and or effect. In addition, this Lease Option to Extend shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term assignment of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice or subletting of exercise all or any part of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordProject.
Appears in 1 contract
Option to Extend. (a) Subject to Section 17.19 of this Lease below (Landlord’s Right to Revoke), Tenant shall have an the option to extend and renew the Term of this Lease as to all (together with the Storage Term of the Premises (but not as to any portion or portions thereofStorage Lease) for one (1) additional further term of five (5) yearsyears (the “Extension Term”). In order Such extension shall be on the same terms and conditions as contained in this Lease, except that: (i) there shall be no further right to exercise extend after the expiry of the Extension Term; (ii) the Minimum Rent payable for the Premises and the Storage Rent (as defined in the Storage Lease) payable for the Storage Premises shall be such option, amount as determined pursuant to subsection 17.6(b) below; and (iii) there shall be no tenant’s allowance or rent-free period for the Extension Term and the Premises and the Storage Premises shall be accepted by Tenant in “as is” condition at the commencement of the Extension Term without Landlord being required to perform any work. Such right to extend shall notify be exercisable by notice to Landlord in writing at least two hundred seventy by not later than nine (2709) days months prior to the expiration expiry of the Lease original Term hereof, failing which such right shall be null and void and forever extinguished.
(i.e., by September 4, 2007b) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate The Minimum Rent and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal Storage Rent for the then current Extension Term shall be the market rent (“Market Base Rental Rate (per rentable square foot per annum, “NNNRent”) for the renewal term. Tenant shall have thirty Premises and the Storage Premises, respectively (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance which for purposes of the proposed definition of Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election Rent are collectively referred to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term“Premises”). As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental RateRent” shall mean as of any date means the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which could reasonably be obtained by Landlord for the Premises from a willing tenant under no compulsion would agree to accept as of such or willing tenants dealing at arms’ length with Landlord in the market prevailing for a term commencing on the relevant date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account having regard to all relevant factors, including, without limitation, use, location and/or floor level within circumstances including the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age size and location of the applicable building, rental concessionsPremises, the time facilities afforded, the particular rate under consideration became effective, size terms of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services providedthe lease thereof (including its provisions for Additional Rent), and so forththe improvements therein, and with the assumption that the improvements existing at the time are ideal for Tenant’s use as is, and disregarding any deficiencies in the condition and state of repair of the Premises as a result of Tenant’s failure to comply with its obligations hereunder in respect of the maintenance and repair of the Premises, and having regard to all economic inducements and rentals currently being obtained for space in the Building (if applicable) and for comparable space in other buildings comparably located. If The Market Rent for the Extension Term shall be as agreed upon between Landlord and Tenant or, failing agreement by Landlord and Tenant, by written notice delivered no not later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations months prior to the expiry of the Term hereof, the Market Base Rental Rate Rent shall be subject established by single arbitration pursuant to the limitations on Market Base Rental Rate set forth in Arbitration Act, Ontario. In the first paragraph of this Section. Each of event that the parties shall pay for Minimum Rent and the appraiser appointed by it and shall bear one-half of Storage Rent payable during the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who Extension Term has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term been determined prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension termExtension Term, then until such determination has been made, Tenant shall pay Minimum Rent and Storage Rent at a rate equal to one hundred and ten (110%) percent of the first Base Minimum Rent payment becoming due after and Storage Rent payable during the immediately preceding twelve (12) month period. Upon determination of the applicable Market Base Rental Rate shall include Minimum Rent and Storage Rent for the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may relevant Extension Term, either Landlord shall pay to Tenant any excess or Tenant elect not shall pay to extend Landlord any deficiency in the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised payments of Minimum Rent and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived Storage Rent previously made by LandlordTenant.”
Appears in 1 contract
Option to Extend. Tenant shall have an A Lessee is granted one option to extend this Lease, such option to be for a 1 - year period, on the same terms and renew conditions as contained herein, except that the monthly base rental rate provided for in Paragraph(s) 4(a) of this Lease as to all shall be at the then market rate. Lessee shall advise Lessor of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order its intent to exercise such this option, Tenant shall notify Landlord in writing at least two hundred seventy (270) writing, not more than 210 nor than 180 days prior to the expiration end of the Lease Term (i.e., by September 4, 2007) of its election expiring term. If Lessee fails to exercise this option within the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essencerequired, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Termvoid. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant B The parties shall have thirty (30) days from after Lessor receives the receipt of said option notice from Landlord in which to notify Landlord in writing of (i) Tenant’s acceptance of agree on the proposed Market Base Rental Ratemonthly base rental for the extended term during that period, or (ii) Tenant’s rejection of they shall immediately complete and sign the Market Base Rental Rate and election to initiate the appraisal process set forth agreement scheduled below. C If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established monthly base rental for the extended term prior to its commencementwithin that period, Tenant the monthly base rental shall continue to pay be determined by arbitration in accordance with the applicable Base Rent required for the last full month Real Estate Valuation Arbitration Rules of the Lease term until American Arbitration Association. Lessee shall be responsible for initiating the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined arbitration proceeding and advancing 1/2 the administration fee charged by the appraisersAmerican Arbitration Association within 15 days of the expiration of the 30-day period described in Paragraph (B) above. If Lessee fails to so initiate such arbitration within that period, the option shall be retroactive to the commencement of the extension termvoid, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not expire at the end of the term, that date being April 30, 2001. D In setting the fair market monthly base rental value for the extended term, the arbitrator shall consider what monthly rents are being paid and what rent escalation provisions are being included on recently executed leases for similar terms, for spaces which are reasonably similar to the premise, with similar amenities and in the general neighborhood of the premises, but shall exclude the value of all tenant improvements made by Lessee to the Premises at Lessee's cost. E Upon receiving written notice of the arbitrator's determination of the fair market monthly rental, the parties shall complete and sign the agreement scheduled below stating the base monthly rental at that rate. Lessor shall credit Lessee, against the next rental payment due, an amount equal to one- half the administrative fee for such arbitration paid by Lessee, and the arbitrator's fee, if any, shall be paid one-half by each party. F Upon execution of this option, the term shall be extended if Landlord has given Tenant notice of default which default to April 30, 2002 To be completed when the Option is not cured within any applicable cure periods or waived by Landlord.exercised: By signing below the parties acknowledge:
Appears in 1 contract
Sources: Industrial Gross Lease (Copper Mountain Networks Inc)
Option to Extend. Tenant shall have an option may extend the Term of this Lease for up to extend and renew the Lease as to all of the Premises ---------------- two (but not as to any portion or portions thereof) for one (12) additional term of five (5) years. In order year period(s) by giving notice to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise extend at least fourteen (14) months prior to the option. If Tenant elects not to extend or fails to timely exercise its option, time being end of the essenceoriginal Term or the end of the first five year extension period, as the case may be. The Yearly Fixed Rent payable by Tenant with respect to each such extension period shall be equal to the greater of (a) the then fair market -------------- rental value of the Demised Premises for use for the Permitted Use, or (b) (i) -- the Yearly Fixed Rent for calendar 2008, in the case of determination of the Yearly Fixed Rent payable with respect to the first five (5) year extension period and (ii) the Yearly Fixed Rent for calendar 2013, in the case of determination of the Yearly Fixed Rent payable with respect to the second five (5) year extension period. As used herein, "fair market rental value" shall mean (1) as the same may be mutually agreed by Landlord and Tenant; provided, however that (2) if they have not so agreed in writing within two (2) months following the exercise of the option then said fair market value shall automatically terminate be determined by appraisers, one to be chosen by Landlord, one to be chosen by Tenant, and a third to be of no further force and effect and this Lease shall terminate upon selected by the expiration two first chosen. The unanimous written decision of the initial Termtwo first chosen, without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant. Upon receipt Landlord and Tenant shall each notify the other of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing its chosen appraiser within thirty (30) days a proposal for following expiration of the then current Market Base Rental Rate aforesaid two (per rentable square foot per annum2) month period and, “NNN”) for the renewal term. Tenant unless such two appraisers shall have thirty reached a unanimous decision within seventy-five (3075) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointedexpiration, they shall within a further fifteen (15) days elect a third appraiser meeting and notify Landlord and Tenant thereof. Landlord and Tenant shall each bear the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either expense of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed chosen by it and shall equally bear one-half the expense of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordany).
Appears in 1 contract
Sources: Lease (Focal Communications Corp)
Option to Extend. Tenant shall have an the option to extend the Term of this Lease (the “Option”) for Two (2) periods of Five (5) Years (each such period an “extension term”) provided Tenant gives Landlord and renew Landlord is in receipt thereof a written notice delivered by U.S. Postal Service, mail return receipt requested, of Tenant’s election to exercise the Option a minimum of 180 days and a maximum of 270 days prior to the Expiration Date of the Term of this Lease (or the then applicable extension term, to the extent the Term has been previously extended by the terms of this Article). The terms and conditions governing each such extension term will be the same as those for the Initial Lease Term, except and to all the extent modified by the terms of Paragraphs E and F, below. Time is of the essence with respect to each and every term of this article.
A. The Option herein granted to Tenant may not be assigned without any permitted assignment of this Lease or sublease of the Premises (but not as to or any portion or portions thereof).
B. Tenant shall not have the right to exercise the Option, notwithstanding anything set forth above to the contrary:
1. During any period of time commencing from the date Landlord gives to Tenant a written notice that Tenant is in default under any provision of this Lease, and continuing until the default alleged in said notice is cured; Landmark National Bank Revised 8-16-01 525-937-A,B and C ADDENDUM ▇▇. ▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ FINAL. 8-16-01 Addendum #1 rev 3.9.00 Landlord [ILLEGIBLE] Tenant [ILLEGIBLE]
2. During the period of time commencing on the day after a monetary obligation to Landlord is due from Tenant and unpaid (without any necessity for notice thereof to Tenant) for one (1) additional term and continuing until the obligation is paid;
3. At any time after the occurrence of five (5) yearsany default described in Paragraph 26 of the Lease that remains occurred as of the date of exercise of the Option; or
4. In order the event that Landlord has given to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days or more notices of default or two or more late charges have become payable under the Lease during the twelve-month period prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election time that Tenant intends to exercise the option. If Tenant elects Option.
C. The period of time within which the Option may be exercised shall not be extended or on enlarged by reason of Tenant’s inability to extend or fails to timely exercise its option, time being the Option because of the essenceforegoing provisions of Paragraph B, even if the option effect thereof is to eliminate Tenant’s right to exercise the Option.
D. All rights with respect to the Option shall automatically terminate and be of no further force or effect even after Tenant’s due and effect and this Lease shall terminate upon the expiration timely exercise of the initial Term. Upon receipt of Option, if, after such notice from Tenant exercising exercise, but prior to the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance commencement of the proposed Market Base Rental Rateapplicable extension term, or (ii1) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s pay to Landlord a monetary obligation of Tenant for a period of ten days after such obligation become due (without any necessity of Landlord to give notice or thereof to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to ); (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii2) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject fails to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint cure a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed monetary default within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) 30 days after the date the second appraiser has been appointedLandlord gives notice to Tenant of such default; or (3) Landlord gives to Tenant two or more notices of default or a late charge becomes payable for any such default, they whether or not such defaults are cured.
E. The Basic Monthly Rent shall elect a third appraiser meeting be increased on the qualifications stated first day of each extension term (the “Rental Adjustment Date”) to the “fair rental value” of the Premises (including all improvements), determined in this paragraph within seven (7) the following manner.
1. Not later than 120 days after prior to the last day applicable Rental Adjustment Date, Landlord and Tenant shall meet in an effort to negotiate, in good faith, the two (2) appraisers are to set fair rental value of the Market Base Premises as of such applicable Rental RateAdjustment Date. If Landlord and Tenant have not agreed upon the appraisers fair rental value of the Premises at least 90 days prior to the applicable Rental Adjustment Date, the fair rental value shall be determined by appraisal as described below.
2. If Landlord and Tenant are not able to agree upon the fair rental value of the Premises within the time period prescribed in Paragraph 1, then Landlord and Tenant shall attempt to agree in good faith upon a single appraiser not later than 75 days prior to the applicable Rental Adjustment Date, if Landlord and Tenant are unable to agree on upon a single appraiser within such time period, then Landlord and Tenant shall each appoint an appraiser not later than 65 days prior to the applicable Rental Adjustment Date. Within five days thereafter, the two appointed appraisers shall appoint a third appraiser. If Landlord and Tenant agree upon an appraiser, or if either Landlord or Tenant fails to appoint its appraiser within the prescribed time period, the single appraiser appointed shall determine the fair rental value of the Premises. If both parties fail to this Leaseappoint appraisers within the prescribed time periods, after giving five (5) days’ prior written notice to then the other party, may apply to first appraiser thereafter selected by a party shall determine the then president fair rental value of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this SectionPremises. Each party shall bear the cost of its own appraiser and the parties shall pay for the appraiser appointed by it and shall bear one-half of share equally the cost of appointing the single or third appraiser if applicable. Each such appraiser must have at least five years experience in the appraisal of commercial/industrial real property in the area in which the Project is located and of paying the third appraiser’s fee. The third appraiser, however selected, shall be members of a person who has not previously acted in any capacity for either partyprofessional organization such as MAI or equivalent.
3. The appraisers For the purposes of such appraisal, the term “fair rental value” shall be instructed to consider mean the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection price that a ready and willing tenant would pay, as of the third appraiserapplicable Rental Adjustment Date, as monthly rent to a ready and willing Landlord of property comparable to the third Premises if such property were exposed for lease on the open market for a reasonable period of time and taking into account all of the purposes for which such property may be used. If a single appraiser is chosen, then such appraiser shall determine the Market Base Rental Rate and all three fair rental value of the appraiser’s Market Base Rental Rates Premises. Otherwise, the fair rental value of the Premises shall be averaged excluding any single Market Base Rental Rate the arithmetic average of the two of the three appraisals which is either ten percent (10%) higher or lower are closest in amount, and the third appraisal shall be disregarded. In no event, however, shall the Basic Monthly Rent for the first year of the extension term be less than the middle appraisal Basic Monthly Rent Payable by Tenant during the last year of Market Base the proceding Lease term. Landlord and Tenant shall instruct the appraiser(s) to complete their determination of the fair rental value no later than 30 days prior to the applicable Rental Rate and Adjustment Date. If, notwithstanding such instruction, the remaining appraisals shall then be averaged. If the Market Base Rental Rate fair rental value is not established for determined before the extended term prior to its commencementfirst day of an extension term, then Tenant shall continue to pay to Landlord the Basic Monthly Rent applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the Premises immediately prior to such extension term, until the fair rental value of the Premises is determined. When the fair rental value of the Premises is determined, Landlord shall deliver notice thereof to Tenant, and Tenant shall pay to Landmark National Bank Revised 8-16-01 525-937-A,B and C ADDENDUM ▇▇. ▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ FINAL. 8-16-01 Addendum #1 rev 3.9.00 Landlord [ILLEGIBLE]. Tenant [ILLEGIBLE] Landlord, within ten days after receipt of such notice, the difference between the Basic Monthly Rent actually paid by Tenant to Landlord and the first Base new Basic Monthly Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddetermined hereunder.
Appears in 1 contract
Option to Extend. (i) Landlord hereby grants Tenant shall have an a single option to extend and renew the Extended Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) years. In order years (such period may be referred to as the "Option Term"), as to the entire Demised Premises as it may then exist, upon and subject to the terms and conditions of this Section (the "Option To Extend"), and provided that at the time of exercise of such right: (i) Tenant must be in occupancy of the entire Demised Premises; and (ii) Tenant has a net worth sufficient to allow it to timely honor all of its financial obligations thereunder at the time of the exercise.
(ii) Tenant's election (the "Election Notice") to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than February 1, 2007 and no later than May 1, 2007. If Tenant either fails or elects not to exercise its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void.
(270iii) days prior to The Option Term shall commence immediately after the expiration of the Lease Extended Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be Lease specified in Section 3 of no further force and effect and this Lease shall terminate upon the expiration Amendment. Tenant's leasing of the initial Term. Upon receipt of such notice from Tenant exercising Demised Premises during the renewal option herein granted, Landlord Option Term shall submit be upon and subject to the same terms and conditions contained in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of Lease except that (i) Tenant’s acceptance of the proposed Market Base Rental RateAnnual Rent and, or if applicable, the Base Taxes and Operating Costs Amount shall be amended to equal the "Option Term Rent", defined and determined in the manner set forth in the immediately following Subsection; (ii) Tenant’s rejection Tenant shall accept the Demised Premises in its "as is" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice Demised Premises or to elect not provide Tenant any allowance therefor; and (iii) there shall be no further option or right to extend the term of the Lease as provided Lease. If Tenant timely and properly exercises the Option To Extend, references in the immediately preceding sentence, Tenant Lease to the Term shall be deemed to have elected to extend mean the Lease initial Term for as extended by the period specified in Tenant’s original notice Option Term unless the context clearly requires otherwise.
(iv) The Option Term Rent shall mean the greater of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount Annual Base Rent plus Tenant's then current Tenant's Share of Taxes and Operating Costs in excess of the Base Taxes and Operating Costs Amounts for calendar year 2002 (collectively, "Preceding Rent, which shall be determined as set forth herein, ") or (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term"Prevailing Market Rent". As used hereinherein Prevailing Market Rent shall mean the rent and all other monetary payments paid by tenants in connection with the use and occupancy of their premises that are then "market" (such as, for example, charges for after hours HVAC) and escalations, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Demised Premises for a term equal to the Option Term, as second generation space, and subject commencing when the Option Term is to commence under market leasing conditions; provided however Prevailing Market Rent shall take into account the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date following: the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in floor levels of the County Demised Premises; the type and quality of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, tenant improvements; age and location of the applicable buildingBuilding; quality of construction of the Building; services to be provided by Landlord or by tenant; and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, rental concessionsall based upon comparable class A office buildings in San Jose; provided, however, that Prevailing Market Rent shall be determ▇▇▇▇ without reduction or adjustment for "Tenant Concessions" (as defined below), if any, being offered to prospective new tenants of comparable space. For purposes of the preceding sentence, the time the particular rate under consideration became effectiveterm "Tenant Concessions" shall include, size of tenantwithout limitation, credit of tenant"free rent", relative operating expensestenant improvement allowances and work, taxes and utilities, relative services providedmoving allowances, and so forthlease takeovers. If TenantThe determination of Prevailing Market Rent based upon the foregoing criteria shall be made by Landlord, by written notice delivered no later than in the good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the date Option To Extend, Landlord notifies shall notify Tenant of Landlord's determination of Option Term Rent for the Market Base Rental RateDemised Premises. If, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after Landlord notifies Tenant of Landlord's determination of Option Term Rent, Tenant does not accept Landlord's determination, Tenant shall so notify Landlord of Tenant's non-acceptance. Tenant shall then have the other party has given notice opportunity, within a period of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after following the date the second appraiser has been appointedTenant notifies Landlord of Tenant's non-acceptance, they shall elect to discuss with and request from Landlord a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiserredetermination of Option Term Rent, either of the parties to this Leasewith Tenant's acceptance, after giving five (5) days’ prior written notice to the other partyif any, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated redetermined Option Term Rent to be confirmed in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within writing during such twenty (20) days after day period. If Landlord does not offer a redetermined Option Term Rent, or Landlord and Tenant cannot agree upon an Option Term Rent for any reason or no reason whatsoever, then Tenant may notify Landlord no later than the selection expiration of the third appraisertwenty (20) day period, that Tenant is rescinding Tenant's exercise of the Option to Extend. Upon such rescission, the third appraiser Option to Extend shall determine the Market Base Rental Rate become null and all three void. If Tenant does not notify Landlord of its rescission of the appraiser’s Market Base Rental Rates exercise of the Option to Extend within such twenty (20) day period, then Tenant shall be averaged excluding deemed to have exercised the Option to Extend at the Option Term Rent originally determined by Landlord, or the agreed-upon redetermined Option Term Rent, as applicable.
(v) This Option to Extend is personal to PDF Solutions, Inc. and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any single Market Base Rental Rate which is either ten percent person or entity.
(10%vi) higher or lower than Upon the middle appraisal occurrence of Market Base Rental Rate and any of the remaining appraisals following events, Landlord shall then be averaged. If have the Market Base Rental Rate is not established for the extended term option, exercisable at any time prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, with the effect of canceling and voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:
a. Tenant's failure to timely exercise the Option to Extend in accordance with the provisions of this Section.
b. The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of any default on the part of Tenant under the Lease term until or of any state of facts which with the appraisers have made their determination. The Market Base Rental Rate in questionpassage of time or the giving of notice, when finally determined by or both, would constitute such a default.
c. Tenant's third monetary default under the appraisers, shall be retroactive Lease prior to the commencement of the extension termOption Term, notwithstanding that all such monetary defaults may subsequently be cured. In the event of Landlord's termination of the Option to Extend pursuant to Section 12 (vi) b. or c., Tenant shall reimburse Landlord for all reasonable costs and expenses Landlord incurs in connection with Tenant's exercise of the Option to Extend including, without limitation, costs and expenses with respect to any brokerage commissions and attorneys' fees, and with respect to the first Base Rent design, construction or making of any tenant improvements, repairs or renovation or with respect to any payment becoming due after the determination of all or part of any allowance for any of the applicable Market Base Rental Rate foregoing.
(vii) Without limiting the generality of any provision of the Lease, time shall include be of the retroactive amounts essence with respect to all of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice provisions of default which default is not cured within any applicable cure periods or waived by Landlordthis Section.
Appears in 1 contract
Sources: Office Lease (PDF Solutions Inc)
Option to Extend. Tenant shall have an option Lessor hereby grants to Lessee two (2) options to extend and renew the Lease as to all Initial Term of the Premises (but not as to any portion or portions thereof) this Lease, each for one (1) additional term a period of five (5) yearsyears (each, an “Extension Option”). In order to exercise such optionEach respective Extension Option shall be deemed exercised unless Lessee provides Lessor with written notice, Tenant shall notify Landlord in writing at least two hundred seventy (270) days on or before one year prior to the expiration then scheduled Expiration Date, of the Lease Term (i.e., by September 4, 2007) of its Lessee’s election not to exercise the optionrespective Extension Option. If Tenant elects not to extend or fails to timely exercise its option, time being In the event the Term of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate be extended under this Section, then all of the terms, covenants and conditions of this Lease shall remain unmodified and in full force and effect, except that:
(i) Each Extension Term shall commence immediately upon the expiration of the initial Initial Term or prior Extension Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or as applicable.
(ii) Tenant’s rejection of the Market The Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term Rent for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which Extension Term shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal termfollows. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than Within thirty (30) days after the date Landlord notifies Tenant exercise or deemed exercise of the Market Base Rental RateExtension Option, objects Lessor shall notify Lessee in writing as to Lessor’s determination, in Lessor’s good faith judgment, of the fair market rent of comparable space (including square footage, location and quality of the Property) to the Property (the “Fair Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7Rent”) days of the date of Tenanttogether with reasonable back-up material supporting Lessor’s objection, each party determination. Lessee shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within have twenty (20) days after the date from receipt of Lessor’s determination of the appointment Fair Market Rent accept or reject Lessor’s determination.
(iii) Until the Fair Market Rent has been agreed upon, the initial Base Rent for the Extension Term shall be the Base Rent payable during the month preceding the commencement of the last appraiserapplicable Extension Term. In the event the Fair Market Rent is determined to be greater than such amount, then Lessee shall promptly pay Lessor any balance due.
(iv) If Lessee timely objects to Lessor’s determination of Fair Market Rent, Lessor and Lessee shall diligently attempt in good faith to agree on the Fair Market Rent within ten (10) days of Lessee’s notice of objection (“Outside Agreement Date”). If Lessor and Lessee fail to reach agreement by the Outside Agreement Date, each shall make a party does not appoint a qualified appraiser separate determination of the Fair Market Rent within five (5) days after the other party has given notice of the name Outside Agreement Date. Such determination shall then be submitted to arbitration in accordance with (v) below.
(v) Within fifteen (15) days of the appraiserOutside Agreement Date, then the single appraiser Parties shall be agree upon an arbitrator who shall decide whether the sole appraiser Parties will use Lessor’s or Lessee’s submitted Fair Market Rent and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly notify Lessor and attempt to set the Market Base Rental RateLessee of its decision. If they the Parties are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured arbitrator within any applicable cure periods or waived by Landlord.fifteen
Appears in 1 contract
Sources: Lease Agreement
Option to Extend. Tenant Lessee shall have an the option to extend and renew the term of this Lease as to ("Option") on all of the Premises terms, conditions, covenants and provisions, contained in this Lease, except for the Monthly Rent, for two (but not as to any portion or portions thereof) for one (12) additional term terms of five (5) yearsyears each following the Termination Date. In order The Option Term shall commence on the day immediately following the Termination Date. Lessee may exercise the Option by giving written notice of exercise of the Option to exercise such option, Tenant shall notify Landlord in writing Lessor at least two one hundred seventy twenty (270120) days prior to before the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the optionTermination Date. If Tenant elects not to extend or fails to timely exercise its option, time being Lessee is in default on the date of giving the essenceOption Notice, the option Option Notice shall be totally ineffective. If the Option Notice is not given, the Option shall automatically terminate expire and be of no further force and effect and or effect. The Option granted to Lessee in this Lease shall terminate upon is personal to the expiration of original Lessee and may be exercised only by the initial Termoriginal Lessee while physically occupying the Premises. Upon receipt of such notice from Tenant exercising the renewal option herein grantedThe Option may not be exercised or assigned, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annumvoluntarily or involuntarily, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice by or to elect not any person or entity other than Lessee. Any consent by Lessor to extend the term an assignment of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise or a sublet of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the termsPremises, conditions and covenants of this Lease except as to (i) the amount of Base Rentor any portion thereof, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicableconstrued as a waiver of this prohibition. Monthly Rent during each Option period shall be at Fair Market Value, as determined by Lessor, at the time Lessor receives the Option Notice. In the event the Lessor and Lessee cannot agree on the new base rent, the matter shall be submitted for decision to a panel of three arbitrators. Lessor and Lessee shall each appoint one arbitrator who shall by profession be a licensed commercial real estate broker or an MAI real estate appraiser, and (iii) Tenant who shall pay Tenant’s Prorata Share of Operating Expenses throughout be familiar with the renewal term. As used herein, premises Building and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age have been active in the County brokering or appraisal of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level properties in an area within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location a three (3) mile radius of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthPremises. If Tenant, by written notice delivered no later than thirty Each such arbitrator shall be appointed within fifteen (3015) days after the date Landlord notifies Tenant Lessee's notice to Lessor of the Market its election to have New Base Rental Rate, objects to the Market Base Rental Rate Rent determined by Landlord and elects to submit the rate determination to appraisal, then, this arbitration procedure. The two arbitrators so appointed shall within seven fifteen (715) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified appraiser under the same criteria set forth hereinabove for qualification of the initial two arbitrators. Failing such agreement, either Lessor or Lessee shall have the right to petition for the appointment of the third arbitrator by the Presiding Judge of the Superior Court of the County of San Diego. The three arbitrators shall within five thirty (530) days after the other party has given notice of the name appointment of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by third arbitrator reach a decision as to whether the parties shall meet promptly use Lessor's or Lessee's proposed New Base Rent, and attempt to set the Market Base Rental Rateshall notify Lessor and Lessee therefore. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either The decision of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president majority of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection three arbitrators shall be made within three (3) daysbinding upon Lessor and Lessee. All determinations The cost of Market Base Rental Rate the arbitration shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed paid by it Lessor and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidLessee equally. In no event may either Landlord event, shall the monthly rent for the Option term be less than a four percent (4%) increase over the previous year's monthly rent. Upon agreement to the terms of the Option, Lessor shall immediately execute an Extension of Lease Agreement. All rights of Lessee with respect to the Option shall terminate and be of no further force or Tenant elect effect if Lessor and Lessee do not come to extend agreement on the Lease based upon Option. Neither Lessor nor Lessee shall have the Market Base Rental Rate established in accordance herewithright to have a court or third party set the Monthly Rent. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordALL OTHER TERMS AND CONDITIONS OF THE ABOVE REFERENCED LEASE SHALL REMAIN IN FULL FORCE AND EFFECT.
Appears in 1 contract
Sources: Standard Industrial/Commercial Multi Tenant Lease (Natural Alternatives International Inc)
Option to Extend. Tenant shall have an option to extend and renew Successful Respondent agrees that DIR may require continued performance under this Contract at the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord rates specified in writing at least two hundred seventy (270) days prior to this Contact following the expiration of the Lease Initial Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial any Renewal Term. Upon receipt This option may be exercised more than once, but the total extension of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which performance hereunder shall not be applicable, and exceed ninety (iii90) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) calendar days. All determinations Such extension of Market Base Rental Rate services shall be subject to the limitations on Market Base Rental Rate requirements of the Contract, with the sole and limited exception that the original date of termination shall be extended pursuant to this provision. DIR may exercise this option upon thirty (30) calendar days written notice to the Successful Respondent. SERVICE OFFERINGS Services available under this Contract are limited to the technology categories defined in Request for Offer DIR-CPO-TMP-579 for Information Technology Staff Augmentation Contract (ITSAC) Services. At DIR’s sole discretion, Successful Respondent may incorporate changes or make additions to its service offerings, provided that any changes or additions must be within the scope of the RFO. Successful Respondent shall provide one or more Workers to DIR Customers as defined in the applicable Solicitation and resulting Purchase Order in accordance with the terms and conditions of this Contract. Successful Respondent understands that this is a non-exclusive, indefinite quantity Contract. DIR makes no representations or warranties that Successful Respondent shall receive any number or volume of Solicitation opportunities or Purchase Orders hereunder. PRICING Not-to-Exceed Rates Pricing to Customers shall be as set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it Appendix A, Section 8, Pricing, Purchase Orders, Invoices and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension termPayment, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate as limited by Appendix C ITSAC Not-to-Exceed Rates, and shall include the retroactive amounts of monthly Base Rent installments accrued DIR Administrative Fee. Hourly Rates Successful Respondent’s quoted and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease actual hourly rates shall not be extended if Landlord has given Tenant notice of default which default is exceed the applicable NTE Rate. Successful Respondent shall not cured within increase its hourly rates under any applicable cure periods Purchase Order, including any amendments or waived by LandlordPurchase Order Change Notice (POCN) thereto, except as explicitly agreed upon therein.
Appears in 1 contract
Sources: Contract for Information Technology Staff Augmentation
Option to Extend. (a) Provided Tenant is not in default under the Lease as amended hereby (after any applicable notice and lapse of applicable cure periods) as of the date of exercise or the end of the New Premises Term, Tenant shall have an one (1) option to extend and renew the Lease as to all of amended hereby (“Renewal Option”) for the entire Premises (but not as to any portion or portions thereof) then leased by Tenant for one (1) additional term period of five three (53) years. In order years (“Renewal Term”), exercisable by giving written notice thereof (“Renewal Notice”) to Landlord of its exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy of the Renewal Option no later than twelve (27012) days months prior to the expiration of the Lease New Premises Term.
(b) The Base Rent payable for the Premises during the Renewal Term shall be adjusted to the Fair Market Rental Rate (as defined in Section 8(f) below) as of the commencement of the Renewal Term (i.e., by September 4, 2007) “Renewal Term Commencement Date”). Landlord shall give Tenant written notice of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being Landlord’s determination of the essence, Fair Market Rental Rate for the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing Renewal Term (“Landlord’s Statement”) within thirty (30) days a proposal for after Landlord’s receipt of the then current Renewal Notice (but Landlord shall not be obligated to do so earlier than twelve (12) months prior to expiration of the New Premises Term). Within fifteen (15) days after Tenant’s receipt of Landlord’s Statement (“Tenant’s Review Period”), Tenant shall give Landlord written notice of its election to either (a) accept the Fair Market Base Rental Rate set forth in Landlord’s Statement or (per rentable square foot per annumb) reject Landlord’s Statement and request that the Fair Market Rental Rate be determined by arbitration pursuant to Section 8(c); provided, “NNN”) however, that prior to submitting the matter to arbitration as herein provided, the parties shall first attempt in good faith to resolve their differences in the determination of the Fair Market Rental Rate for the renewal term. Tenant shall have a period of thirty (30) days from the following Landlord’s receipt of said Tenant’s notice from of its rejection of Landlord’s statement. If Tenant fails to give Landlord notice of its acceptance or rejection of Landlord’s Statement by the expiration of Tenant’s Review LEGAL\45488233\8 Period, then such failure shall be deemed to notify Landlord in writing of (i) be Tenant’s acceptance of the proposed Fair Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s Statement.
(c) If Tenant gives Landlord notice or that it elects arbitration pursuant to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicableSection 8(b), and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject parties have failed to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level resolve their differences within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than required thirty (30) days after thereafter, then, in order to determine the date Landlord notifies Tenant of the Fair Market Base Rental Rate, objects to on the Market Base Rental Rate determined by Landlord and elects to submit day that is the rate determination to appraisal, then, within seven thirty-fifth (735th) days of the date day after Landlord’s receipt of Tenant’s objectionwritten notice of election to arbitrate, Landlord and Tenant shall each party simultaneously submit to the other in writing its good faith estimate of the Fair Market Rental Rate (“Good Faith Estimates”). If the higher of the Good Faith Estimates is not more than one hundred and five percent (105%) of the lower of the Good Faith Estimates, the Fair Market Rental Rate in question shall appoint be deemed to be the average of the submitted rates. If otherwise, then the rate shall be set by arbitration to be held in Santa Monica, California in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association, except that the arbitration shall be conducted by a non-affiliated certified M.A.I. Appraiser that has at least single arbitrator selected as follows. Within five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) business days after the date simultaneous submittal by Landlord and Tenant of their respective Good Faith Estimates, each shall designate a recognized and independent real estate broker who shall have at least ten (10) years’ experience in the leasing of properties similar to and in the vicinity of the appointment of the last appraiserProject. If a party does not appoint a qualified appraiser The two individuals so designated shall, within five ten (510) business days after the other party has given notice last of them is designated, appoint a third independent broker possessing the name of the appraiser, then aforesaid qualifications to be the single appraiser shall be the sole appraiser arbitrator, and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If if they are unable to agree on do so, then the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three by an arbitrator selected at random by the American Arbitration Association under the Commercial Rules of Arbitration (3which arbitrator shall be a real estate lawyer practicing in the greater Los Angeles area with at least ten (10) daysyears of experience in the field of leasing). All determinations The third arbitrator so selected shall, alone, pick one of the two Good Faith Estimates, being the Good Faith Estimate that is closer to the Fair Market Base Rental Rate shall be subject to as determined by the limitations on Market Base Rental Rate arbitrator using the definition set forth in Section 8(f). The parties agree to be bound by the first paragraph of this Section. Each decision of the parties arbitrator, which shall pay for the appraiser appointed by it be final and non-appealable, and shall bear one-half share equally the costs of arbitration, and judgment upon the cost of appointing award rendered by the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall arbitrator may be a person who has not previously acted entered in any capacity for either party. The appraisers shall be instructed to consider court having jurisdiction thereof.
(d) During the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementRenewal Term, Tenant shall continue to pay Additional Rent in accordance with the applicable Base Rent required for provisions of the last full month Lease, as amended hereby.
(e) The Renewal Option set forth in this Article 8 is personal to Entravision Communications Corporation (“Original Tenant”), and may not be assigned, transferred or conveyed to any party, except in connection with an assignment of the Lease term until in its entirety to an Affiliate pursuant to Section 14.7 of the appraisers have made their determinationOriginal Lease, and may be exercised only if Original Tenant or its Affiliate occupies the entire Premises, without sublease or assignment to any other party.
(f) As used herein, the phrase “Fair Market Rental Rate” shall mean the fair market value rental rate that a comparable tenant would pay and a comparable landlord would accept in an arm’s length transaction, for delivery on or about the applicable delivery or effective date, for non-renewal, non-expansion space in the Project and in Comparable Buildings (as defined in Section 1.1.3 of the Original Lease) (“Comparable Transactions”), provided that any Comparable Transactions in the Project or in Phase II during the preceding 12 month period will be given the most weight in determining the Fair Market Rental Rate when comparing the rental LEGAL\45488233\8 rates accepted by owners of the Comparable Buildings. In any determination of Comparable Transactions, appropriate consideration shall be given to (i) rental rates per rentable square foot, the standard of measurement by which the rentable square footage is measured, the ratio of rentable square feet to usable square feet, (ii) the type of escalation clauses (including without limitation, operating costs, real estate tax allowances or base year and rental adjustments), (iii) rental abatement or free rent concessions, if any, (iv) brokerage commissions, (v) the length of the term, (vi) the size and location of the premises being leased, (vii) building standard work letters and/or tenant improvement allowances, if any, (viii) the date as of which the Fair Market Rental Rate is to become effective, and (ix) other generally applicable terms and conditions of tenancy for such Comparable Transactions. The Market Base Rental Rate intent is that Tenant will obtain the same rent and other economic benefits that Landlord would otherwise give in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension termComparable Transactions and that Landlord will make, and receive the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued same economic payments and unpaid. In no event may either concessions that Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established would otherwise make, and receive in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordComparable Transactions.
Appears in 1 contract
Option to Extend. Tenant shall have an option (a) Lessor hereby grants to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for Lessee one (1) additional option to extend the term of five this Lease for a period of twenty four (524) yearscalendar months immediately following the expiration of the initial term (the “option extension period”). In order Lessee may exercise the foregoing option to extend by giving written notice of exercise such option, Tenant shall notify Landlord in writing to Lessor at least two hundred seventy six (2706) days months, but not more than twelve (12) months, prior to the expiration of the initial term of this Lease Term (i.e.the “option exercise period”), provided that if there currently exists an Event of Default by September Lessee (as defined in Paragraph 22) under this Lease that remains uncured after the expiration of notice and cure periods, if any, at the time of exercise of the option or at the commencement date of the option extension period, such notice shall be void and of no force or effect. The option extension period, if exercised, shall be upon the same terms and conditions as the initial term of this Lease, including the payment by Lessee of Lessee’s Share of increases in the Operating Expenses and Taxes pursuant to Paragraph 5, except that (1) the Monthly Base Rent during the option period, if exercised, shall be determined as set forth in Paragraph 3(c) hereof, (2) Lessor may adjust the hourly rate for after hours HVAC services as of the commencement date of the option extension period pursuant to Paragraph 15(b), (3) there shall be no additional option to extend, and (4) Lessee shall accept the Premises in their “as is” condition, 2007subject to compliance with Laws as provided in Paragraph 2(c) and compliance with the Americans With Disabilities Act as provided in Paragraph 13(d) which shall also apply to the commencement of its election to the option extension period. If Lessee does not exercise the option. If Tenant elects not to extend or fails to option in a timely exercise its optionmanner, the option shall lapse, time being of the essence. Subject to the foregoing, neither Lessor nor Lessee shall be required to perform any tenant improvement work with respect to the option extension period.
(b) The option to extend granted to Lessee by this Paragraph 3 is granted for the personal benefit of Rocket Fuel, Inc. (“Rocket Fuel”) only, and shall automatically terminate be exercisable only by Rocket Fuel or by an assignee or sublessee referred to in Paragraph 17(g) as a “Permitted Affiliate.” Said option may not be assigned or transferred by Rocket Fuel to, or exercised by, any assignee or sublessee, except as provided in Paragraph 17(g).
(c) The initial Monthly Base Rent for the Premises during the option extension period shall be determined pursuant to the provisions of this subparagraph (c) and shall be equal to the then current fair market Monthly Base Rent of the Premises on the commencement date of the option extension period as determined by agreement between the Lessor and Lessee reached prior to the expiration of the option exercise period, if possible, or by the process of appraisal if the parties cannot reach agreement. Upon the written request by Lessee to Lessor received by Lessor no further force and effect and this Lease shall terminate upon earlier than twelve (12) months prior to the expiration of the initial Termterm, and no later than the eight (8) months prior to the expiration of the initial term, and prior to the exercise by Lessee of the option to extend, Lessor shall give Lessee written notice of Lessor’s good faith opinion of the amount equal to the fair market Monthly Base Rent of the Premises as of the commencement of the option extension period. Upon receipt Thereafter, upon the request of such notice from Tenant exercising the renewal option herein grantedLessee, Landlord Lessor and Lessee shall submit in writing within enter into good faith negotiations for up to thirty (30) days a proposal in an effort to reach agreement on the fair market Monthly Base Rent for the then current Market Premises on the commencement date of the option extension period. If Lessor and Lessee are unable to agree upon the amount equal to the initial fair market Monthly Base Rental Rate (per rentable square foot per annum, “NNN”) Rent for the renewal term. Tenant shall have thirty (30) days from Premises on a full service basis, and thereafter, prior to the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance expiration of the proposed Market Base Rental Rateoption exercise period, or (ii) Tenant’s rejection Lessee exercises the option to extend, said amount of the Market initial Monthly Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which Rent shall be determined as set forth herein, (ii) options by appraisal. The appraisal shall be performed by one appraiser if the parties are able to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthupon one appraiser. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects parties are unable to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objectionagree upon one appraiser, each party shall appoint an appraiser and the two appraisers shall select a non-affiliated certified M.A.I. Appraiser that has third appraiser. Each appraiser selected shall be a member of the American Institute of Real Estate Appraisers (AIREA) with at least five (5) years’ years of full-time commercial real estate appraisal experience in Boulder County the Redwood City-Redwood Shores, California office rental market. If only one appraiser is selected, that appraiser shall notify the parties in simple letter form of its determination of the amount equal to determine the Market fair market Monthly Base Rental Rate, such process to be completed within twenty (20) days after Rent for the Premises on the commencement date of the appointment option extension period within fifteen (15) days following its selection. Said appraisal shall be binding on the parties as the appraised current “fair market Monthly Base Rent” for the Premises which shall be based upon what a willing new lessee would pay and a willing lessor would accept at arm’s length for premises comparable to the Premises determined with reference to comparable premises in the vicinity of the last appraiserComplex of similar age, size, quality of construction and specifications (excluding the value of any improvements to the Premises made at Lessee’s cost) for a lease of similar duration to this Lease and taking into consideration that there will be no free rent, improvement allowance, or other concessions. If a party does not appoint a qualified multiple appraisers are selected, each appraiser shall within five ten (510) days after the other party has given notice of being selected make its determination of the name amount equal to the initial fair market Monthly Base Rent for the Premises on a full service basis in simple letter form. If two (2) or more of the appraiserappraisers agree on said amount, then the single appraiser such agreement shall be binding upon the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rateparties. If they multiple appraisers are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the selected and two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on said amount, the third appraiser, either amount equal to the initial fair market Monthly Base Rent for the Premises shall be determined by taking the mean average of the parties to this Leaseappraisals; provided, after giving five (5) days’ prior written notice to that any high or low appraisal, differing from the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed middle appraisal by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either more than ten percent (10%) higher or lower than of the middle appraisal of Market Base Rental Rate and appraisal, shall be disregarded in calculating the remaining appraisals shall then be averagedaverage. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Said initial Monthly Base Rent required for shall be adjusted annually on the last full month anniversary of the Lease term until commencement of the appraisers have made their determination. The Market Base Rental Rate option extension period in question, when finally the manner determined by the appraisersappraiser or appraisers to be consistent with the then prevailing market practice for comparable space in the Redwood City, California office rental market. If only one appraiser is selected, then each party shall pay one-half of the fees and expenses of that appraiser. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third appraiser.
(d) Thereafter, provided that Lessee has previously given timely notice to Lessor of the exercise by Lessee of the option to extend the term, Lessor and Lessee shall execute an amendment to this Lease stating that the Monthly Base Rent for the Premises as of the commencement of the option extension period shall be retroactive equal to fair market rent as agreed upon by Lessor and Lessee, or one hundred percent (100%) of the fair market rental for the Premises as determined by the appraisal process referred to above.
(e) Notwithstanding anything to the contrary contained in subparagraph (c) above, in no event shall the Monthly Base Rent at the commencement of the option extension period be less than the Monthly Base Rent in effect immediately prior to the commencement of the option extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordperiod.
Appears in 1 contract
Sources: Lease (Rocket Fuel Inc.)
Option to Extend. Subject to the provisions hereinafter set forth, Landlord hereby grants to Tenant shall have an one (1) option to extend the term of this Lease (the “Option”) on the same terms, conditions and renew the Lease provisions as to all of the Premises (but not contained in this Lease, except as to any portion or portions thereof) otherwise provided herein, for one (1) additional term period of five (5) yearsLease Years (the “Option Period”). In order The Option Period shall commence, only if properly exercised pursuant to subsection (a) below, upon the termination of the original Term of this Lease (the “Option Period Commencement Date”).
(a) The Option shall be exercisable by written notice from Tenant to Landlord of ▇▇▇▇▇▇’s intent to exercise such option, Tenant shall notify Landlord in writing the Option given not later than the date which is at least two hundred seventy nine (2709) days months prior to the expiration of Option Period Commencement Date and not earlier than eighteen (18) months prior to the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its optionOption Period Commencement Date, time being of the essence. If Tenant fails to timely give written notice of its intent to exercise the Option, the option Option shall automatically terminate thereupon expire of its own terms and be without any further action by Landlord or Tenant.
(b) Basic Rent per square foot of no further force and effect and this Lease shall terminate upon the expiration Rentable Area of the initial Premises payable during the Option Period with respect to all space included in the Premises as of the Option Period Commencement Date shall be equal to the greater of: (i) ninety five percent (95%) of the Prevailing Market Rate (as hereinafter defined) with respect to the Option Period; or (ii) the Basic Rent payable in the last month of the Lease Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantedLandlord shall, Landlord shall submit in writing response to and within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the of Landlord’s receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of its intent to exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the termsOption, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) give Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location written notice of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Prevailing Market Base Rental Rate, objects to as reasonably determined in good faith by Landlord. In the Market Base Rental Rate determined by Landlord and elects to submit event the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience Basic Rent payable in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until Term is greater than ninety five percent (95%) of the appraisers have made their determination. The Prevailing Market Base Rental Rate Rate, as reasonably determined in questiongood faith by Landlord, when finally determined by the appraisers, Basic Rent payable in the last month of the Lease Term shall be retroactive to the commencement Basic Rent payable throughout the Option Period, and Section 46 (c) through (e) shall be inapplicable. However, in the event the Basic Rent payable in the last month of the extension term, and the first Base Rent payment becoming due after the determination Lease Term is less than ninety five percent (95%) of the applicable Prevailing Market Base Rental Rate, as reasonably determined in good faith by Landlord, then ninety five percent (95%) of the Prevailing Market Rate shall include the retroactive amounts of monthly Base Rent installments accrued be determined pursuant to Section 46 (c), (d) and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord(e).
Appears in 1 contract
Sources: Office Lease (Intersearch Group Inc)
Option to Extend. Tenant shall have an option the right to extend and renew the this Lease as (“Option to all of the Premises (but not as to any portion or portions thereofExtend”) for one (1) additional term of five (5) years. In order year period (“Extended Term”) by giving Landlord written notice of its intention to exercise such option, Tenant shall notify Landlord in writing do so at least two hundred seventy nine (2709) days months prior to the expiration of the original term, as extended for the Additional Year, if applicable, under Section 36 above (“Option Notice”); provided, however, that Tenant is not in material default beyond any applicable cure period under the Lease Term on the date of giving such notice or on the date of commencement of the Extended Term. The Option to Extend is personal to Tenant and may not be exercised or assigned, voluntarily or involuntarily, by, or to, any person or entity other than Tenant. The Option to Extend is not assignable separate and apart from the Lease. In the event that, at the time the Option to Extend is exercisable by Tenant, the Lease has been assigned, or a sublease exists (i.e.as to thirty-three percent (33%) or more of the Premises) other than as permitted by the Lease, by September 4the Option to Extend shall be deemed null and void and Tenant, 2007) of its election any assignee, or any subtenant, shall not have the right to exercise the optionOption to Extend. If Tenant elects not to extend or fails to timely exercise its option, time being The Extended Term shall be upon all of the essenceterms and conditions of this Lease, except that the option following rights of Tenant shall automatically terminate and be of no not apply during such extension terms: (a) any right to rent-free possession, (b) any right to further force and effect and this Lease shall terminate upon the expiration extension of the initial Termterm of the Lease, and (c) the monthly Base Rent for the Premises shall be determined by Fair Market Rental Rate. Upon receipt Landlord shall determine the Fair Market Rental Rate by using its good faith judgment. Landlord shall use its good faith efforts to provide written notice of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit amount within fifteen (15) days (but in writing within no event later than thirty (30) days a proposal for days) after Tenant sends an Option Notice to Landlord exercising the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termOption to Extend. Tenant shall have thirty (30) days from (the “Tenant’s Review Period”) after receipt of said Landlord’s notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed new rental within which to accept such rental or to object thereto in writing. In the event Tenant objects, Landlord and Tenant shall attempt to agree upon such Fair Market Base Rental Rate, or using their good faith efforts. If Landlord and Tenant fail to reach agreement within ten (ii10) days following Tenant’s rejection of Review Period (the “Outside Agreement Date”), then each party shall place in a separate sealed envelope their final proposal as to Fair Market Base Rental Rate and election such determination shall be submitted to initiate the appraisal process set forth arbitration in accordance with subsections (a) through (e) below. If Failure of Tenant to so elect in writing within Tenant’s Review Period shall conclusively be deemed its approval of the new rental determined by Landlord. In the event that Landlord fails to timely accept or reject generate the initial written notice of Landlord’s opinion of the Fair Market Base Rental Rate specified which triggers the negotiation period of this provision, then Tenant may commence such negotiations by providing the initial notice, in which event Landlord shall have ten (10) days (“Landlord’s Review Period”) after receipt of Tenant’s notice or to elect not to extend the term of the Lease as provided new rental within which to accept such rental. In the event Landlord does not affirmatively in the immediately preceding sentencewriting consent to Tenant’s proposed rental, Tenant such proposed rental shall be deemed rejected and Landlord and Tenant shall attempt in good faith to agree upon such Fair Market Rental Rate, using their best good faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Landlord’s Review Period (which shall be, in such event, the “Outside Agreement Date” in lieu of the above definition of such date), then each party shall place in a separate sealed envelope their final proposal as to Fair Market Rental Rate and such determination shall be submitted to arbitration in accordance with subsections (a) through (e) below.
(a) Landlord and Tenant shall meet with each other within five (5) business days of the Outside Agreement Date and exchange the sealed envelopes and then open such envelopes in each other’s presence. If Landlord and Tenant do not mutually agree upon the Fair Market Rental Rate within one (1) business day of the exchange and opening of envelopes, then, if Tenant does not revoke its Option Notice by providing written notice to Landlord within five (5) business days after the exchange and opening of the envelopes (in which event Tenant shall have elected no further right to extend the Lease Term for and this Lease shall automatically terminate at the period specified in Tenant’s original notice of exercise end of the renewal option at Initial Term or initial Option Term, as applicable), within ten (10) business days after the Market Base Rental Rate specified by exchange and opening of envelopes Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, agree upon and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” jointly appoint a single arbitrator who shall mean as of any date the then annual net rental rate (exclusive of by profession be a real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a broker who shall have been active over the five (5) year term) period ending on the date of space in comparable first class multi-tenant office buildings of comparable size, location and age such appointment in the County leasing of Boulder, Colorado, at commercial properties in the vicinity of the Building. Neither Landlord nor Tenant shall consult with such timebroker as to his or her opinion as to Fair Market Rental Rate prior to the appointment. The determination of the arbitrator shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Fair Market Rental Rate for the Premises is the closer to the actual Fair Market Rental Rate for the Premises as determined by the arbitrator, taking into account all relevant factorsthe requirements of this Section regarding same. Such arbitrator may hold such hearings and require such briefs as the arbitrator, includingin his or her sole discretion, without limitationdetermines is necessary.
(b) The arbitrator shall, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after of his or her appointment, reach a decision as to whether the date Landlord notifies Tenant of the parties shall use Landlord’s or Tenant’s submitted Fair Market Base Rental Rate, objects to the Market Base Rental Rate determined by and shall notify Landlord and elects to submit the rate determination to appraisal, then, within seven Tenant thereof.
(7c) days The decision of the date of arbitrator shall be binding upon Landlord and Tenant’s objection.
(d) If Landlord and Tenant fail to agree upon and appoint an arbitrator, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of then the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection arbitrator shall be made within three by the Presiding Judge of the Alameda County Superior Court, or, if he or she refuses to act, by any judge having jurisdiction over the parties.
(3e) days. All determinations The cost of Market Base Rental Rate arbitration shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed paid by it Landlord and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordequally.
Appears in 1 contract
Sources: Net Lease Agreement (Singulex Inc)
Option to Extend. Tenant shall have an option the right to extend and renew the Term of this Lease as to all of the Premises (but not as to any portion or portions thereof“Options”) for one two (12) additional term periods of five (5) yearsyears each (“Extension Terms”). In order to exercise such optioneither of the Options, Tenant shall notify give Landlord in writing written notice (“Extension Notice”) at least two hundred seventy six (2706) days months prior to the expiration of the Lease Term (i.e.as same may have been previously extended), by September 4, 2007) provided that no event of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being default exists as of the essence, the option shall automatically terminate and be time of no further force and effect and this Lease shall terminate upon the expiration of the initial Termgiving such Extension Notice. Upon Within thirty (30 ) days after receipt of such notice from Tenant exercising the renewal option herein grantedan Extension Notice, Landlord shall submit in writing within thirty will deliver a lease addendum specifying the “Market Rate” for Base Rent for such extension (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNNAddendum”) for the renewal term). Tenant shall will have thirty (30) days from the receipt of said notice from Landlord’s proposal to execute such Addendum which would constitute an extension of this Lease. The Base Rent payable by Tenant to Landlord during the first lease year of the Extension Term shall be equal to ninety-five percent (95%) of the Market Rate for the Premises calculated as of the date that Tenant exercises its Extension Notice (as determined by Landlord within thirty (30) days after Landlord’s receipt of the Extension Notice). Base rent for each subsequent Lease Year during the Extension Term shall increase by such amount per annum as Landlord shall determine to be a Market Rate for the escalation of Base Rent during the Extension Term. If Tenant timely and properly gives an Extension Notice in accordance with this section, and Tenant disagrees with Landlord’s determination of Market Rate for Base Rent or the Market Rate for the escalation of Base Rent for the Extension Term, Tenant shall so notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after following Tenant’s receipt of the date Landlord notifies Tenant Addendum and if the parties are unable to reach agreement as to the amount of the Market Rate for Base Rental RateRent or the escalation within fifteen (15) days after Tenant’s notice of such disagreement, objects to then each party shall have the Market Base Rental Rate determined by Landlord and elects right to submit the rate matter to arbitration in accordance with the rules of the American Arbitration Association in which one (1) arbitrator shall hear the cause (it being intended that such arbitrator shall be an MAI appraiser having at least ten (10) years’ experience in the appraisal of commercial real estate in the Broward County area and with reasonable experience in appraisals of similar buildings in Broward County) and the determination of such arbitrator shall be binding on the parties. The matter shall be submitted to appraisalarbitration at least three (3) months prior to the expiration of the Term then in effect and each party shall bear its own costs in arbitration and shall split equally any cost of the arbitrator. In the event the amount of Market Rent has not been determined as of the first day of the applicable Extension Term, thenthe Tenant shall pay as monthly Base Rent the amount equal to Base Rent for the last month of the next preceding term and when determination has actually been made an appropriate retroactive adjustment shall be made as of the commencement of the Extension Term. In the event that such determination shall result in an overpayment by Tenant, such overpayment shall be applied to the next due Base Rent due under the Lease and in the event the determination shall result in an underpayment by Tenant, such underpayment shall be paid by Tenant to Landlord within thirty (30) days of such determination. In addition to the Base Rent set forth above, the Tenant shall pay throughout the Term all other monetary obligations set forth in this Lease attributable to the Premises, and all Additional Rent, and shall be required to pay and perform all other obligations required to be paid and performed pursuant to this Lease, except that the Base Rent shall be adjusted as set forth above. Notwithstanding anything contained herein to the contrary, in no event shall Tenant have the right to extend the Term unless Tenant timely and properly exercises the Extension Notice. The termination of this Lease during the Term hereof shall also terminate and render void any remaining options or right on the part of Tenant to extend the Term of this Lease. Notwithstanding the foregoing, between one (1) year and nine (9) months prior to the expiration date of the Term (or any renewal thereof), Tenant shall have the right to request Landlord’s determination of the of Market Rate for Base Rent or the Market Rate for the escalation of Base Rent for the Extension Term. Landlord shall notify Tenant in writing of its determination no later than seven (7) days of months prior to the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the expiration date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five Term (5or any renewal thereof, if applicable) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, so that Tenant shall continue have sufficient time to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive decide whether to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordLease.
Appears in 1 contract
Sources: Lease Agreement (Cyberguard Corp)
Option to Extend. A. Landlord grants to Tenant shall have an the option to extend the term of this Lease for two 3-year periods commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Tenant gives to any portion or portions thereof) Landlord and Landlord receives notice of the exercise of the option to extend this Lease for one (1) said additional term of five no later than twelve (512) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate expire;
(ii) At the time said written notification of exercise of option is given and received, Tenant shall not be in default under any of no further force and effect the material obligations of this Lease to be performed by Tenant and this Lease shall terminate upon not have previously terminated nor terminated prior to the expiration commencement of the initial Termoption term;
(iii) All of the terms and conditions of this Lease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows: The rent payable by Tenant during the first option period shall be the Fair Market Rental Value of the Premises (as defined below) at the commencement date of the option period. Upon receipt There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the first option period. The rent in the first year of the second option period shall be the rent in the last year of the first option period to which will be added a C.P.I. increase not to exceed four percent (4%). There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the second option period. All of the C.P.I. increases during the option periods shall be calculated on the basis of the formula provided in the Lease 1 5.B. If Landlord and Tenant cannot agree on the Fair Market Rental Value of the Premises for the extension periods within forty-five (45) days after the Tenant has notified Landlord of its exercise of the option, Landlord and Tenant shall each select, within forty-five (45) days of such notice from Tenant exercising notification, an appraiser who must be a qualified M.A.I. appraiser to determine said Fair Market Rental Value. If one party fails to so designate an appraiser within the renewal option herein grantedtime required, Landlord the determination of Fair Market Rental Value of the one appraiser who has been designated by the other party hereto within the time required shall be binding upon both parties. The appraisers shall submit in writing their determinations of Fair Market Rental Value to both parties within thirty (30) days after their selection. If the difference between the two determinations is ten percent (10%) or less of the higher appraisal, then the average between the two determinations shall be the Fair Market Rental Value of the Premises. If said difference is greater than ten percent (10%), then the two appraisers shall within twenty (20) days of the date that the later submittal is submitted to the parties designate a proposal for third appraiser who must also be a qualified M.A.I. appraiser. The sole responsibility of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for third appraiser will be to determine which of the renewal termdeterminations made by the first appraisers is most accurate. Tenant The third appraiser shall have thirty (30) days from the receipt no right to propose a middle ground or any modification of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance either of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of determinations made by the Market Base Rental Rate and election to initiate the appraisal process set forth belowfirst two appraisers. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant The third appraiser's choice shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject submitted to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level parties within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant his or her selection. Such determination shall bind both of the parties and shall establish the Fair Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days Value of the date of Tenant’s objection, each Premises. Each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole pay for their own appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either pay an equal share of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it fees and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection expenses of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. Provided that:
(a) the Tenant shall have an option to extend pays the Rent and renew the all other monies payable by it under this Lease as to and performs and has consistently performed all of the Premises (but its obligations under this Lease punctually and in accordance with this Lease and is otherwise not as to then in default of any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior its obligations to the expiration Landlord, and
(b) the original Tenant has not assigned this Lease or sublet or permitted a change in occupancy or other transfer of the Lease Term Premises, and
(i.e., by September 4, 2007c) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being there has been no change in Control of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, without Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, consent which shall not be applicable, and (iii) unreasonably withheld. then the Tenant shall pay Tenant’s Prorata Share will have the option of Operating Expenses throughout the renewal term. As used herein, and subject extending this Lease by notice in writing given to the limitations Landlord not later than six months nor earlier than eight months prior to the expiry of the Term for ONE additional terms of FIVE years on the same terms and conditions set forth out in this paragraphLease, “Market Base Rental Rate” shall mean as except that:
(d) the Minimum Rent to be paid during each extension term will be the fair market rent at the time of any date the then annual net rental rate (exclusive exercise of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of the option for space in comparable first class multi-tenant office buildings of comparable size, quality, and location and age to that of the Premises as determined by the Landlord prior to the execution of any extension of the Term, and
(e) concerning any extension term, the Landlord will have no obligation to pay or provide to the Tenant any allowance, concession, or inducement of any nature, or provide any free rent or discounted rent of any nature, or provide any fixturing period, or do or perform any work in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within Premises.
(f) in the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of event that the applicable building, rental concessionsoption to extend the lease is exercised, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each two 2.5 years of the parties option period that landlord may provide one years (1) notice to have the tenant vacate the premises in the event that;
(a) it intends to demolish the building;
(b) ownership control of the of the building has been transferred to a bona fide third party;
(c) in the event that the tenant vacates under such Notice than the Landlord upon the Tennent vacating the premises shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordTennent $50,000.00.
Appears in 1 contract
Sources: Lease Agreement
Option to Extend. Tenant Lessee shall have an the option (the "Extension Options") to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) Term for one (1) additional term two periods of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy years each (270the "Extension Term") days prior to commencing on the expiration 10th anniversary of the Lease Commencement Date and ending on the date that is five (5) years later (the "Scheduled Extension Term Expiration Date") as follows:
(i.e., by September 4, 2007a) of its election to Lessee may exercise the optionExtension Options by delivering a written extension notice (an "Extension Term Exercise Notice") to Lessor on or before the date (the "Extension Notice Deadline") that is twelve months before the then-established Expiration Date of the current Lease Term. If Tenant elects not to extend or Lessee fails to timely exercise its optiondeliver the Extension Term Exercise Notice before the Extension Notice Deadline, the Extension Option shall be deemed waived and of no further force and effect, time being of the essence, .
(b) The Base Rent payable by Lessee during the option Extension Term shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration ninety percent (90%) of the initial "Extension Market Rate", as that term is defined in this Paragraph 65(b). The term "Extension Market Rate" means the annual rental rate at which the entirety of the Premises, in its then "AS-IS" condition, would be leased to a single non-renewal, non-expansion tenant on a basis for a five-year term commencing on the day after the then-established Expiration Date of the current Lease Term, assuming an Addendum - 3 26 arms-length transaction between a prudent landlord and a prudent tenant, each of which is willing to enter into such a lease but without any compulsion to do so, and assuming the other applicable terms and conditions of the Lease. Upon receipt Lessor will have no obligation to make or pay for any tenant improvements or other work in the Premises or provide any allowance or similar inducement to or on behalf of Lessee in connection with Lessee's exercise of the Extension Option. In considering any comparable lease transactions, all relevant factors shall be taken into consideration. The Extension Market Rate shall be determined as of the date when the parties mutually agree upon such notice from Tenant exercising rate or, in the renewal option herein grantedevent such rate is determined by experts under Paragraph 65(c), Landlord shall submit in writing within thirty (30) days a proposal for as of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing later of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, date the expert or experts render their opinions or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, date which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject is twelve months prior to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multithen-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the established expiration date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the current Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordTerm.
Appears in 1 contract
Sources: Lease Agreement (Pharmchem Inc)
Option to Extend. Tenant shall have an two options to extend the Lease for 5-year periods each upon expiration of the immediately prior term, at a Base Rent equal to 95% of the then-market rental rate, to be reasonably determined by Landlord and Tenant and/or Tenant's Representative (the "Renewal Rent") plus a Tenant refurbishment allowance for repainting and recarpeting; provided that the Renewal Rent for the option period shall not be less than the Base Rent in effect at the expiration of the prior term and the Renewal Rent will be subject to annual 3% increases. Tenant shall give Landlord written notice of Tenant's intent to exercise Tenant's option to extend and renew the Lease as to all of the Premises (but not as to any portion on or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) before 180 days prior to the expiration date for such term. Upon receipt of such notice, Landlord shall have 30 days to deliver written notice to Tenant of the Renewal Rent to be charged during the extension period ("Rent Notice"). Upon receipt of the Rent Notice, Tenant shall have 10 days to notify Landlord, in writing, of Tenant's acceptance or rejection of Tenant's exercise of Tenant's option to extend. In the event Tenant fails to deliver to Landlord written notice of Tenant's acceptance or rejection of the Rent Notice, the Lease Term (i.e., by September 4, 2007) will terminate as of its election to exercise the optionapplicable expiration date. If Tenant elects not This option to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and will be of no further force and effect and if Tenant does not timely exercise its option, Tenant does not timely accept the Rent Notice, Tenant or its Affiliates do not occupy 100% of the Premises at the time Tenant exercises this option, or Tenant is in default under this Lease shall terminate upon after notice and time to cure at the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth belowtime it exercises this option. If Tenant fails accepts the Rent Notice, Tenant will execute an amendment to timely accept or reject this Lease so confirming the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term extension of the Lease as provided in and the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice Renewal Rent within 30 days of exercise receipt of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by same from Landlord.
Appears in 1 contract
Option to Extend. Provided Tenant shall have is not in default under any provision of the Lease, Landlord hereby grants to Tenant an option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term of five three (53) years, when the existing term expires, on the terms and conditions set forth in this paragraph. In order to Tenant may exercise such option, Tenant shall notify this option by giving Landlord in writing at least two written notice of its intention not less than one hundred seventy twenty (270120) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) existing term of its election to exercise the optionthis Lease. If Tenant elects this Option is exercised, the Base Monthly Rent for the Premises shall equal the then current fair market monthly rent ("Fair Market Rent") which shall not to extend or fails to timely exercise its option, time being be less than $23,408.00 per month for the Premises as of the essencecommencement date of the applicable extended term, and adjusted upwards each year for at least 4% per annum. If the option parties cannot agree on the amount of the "Fair Market Rent" and the annual adjustment to such Fair Market Rent within sixty (60) days prior to the commencement of such extended term, then the Fair Market Rent and the annual adjustment thereto shall automatically terminate be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of no further the Lease, shall remain in full force and effect and this Lease shall terminate upon apply during the expiration Option term. If the fair market rental value for the Premises needs to be determined by appraisal, Landlord and Tenant shall either agree to select one real estate appraiser or three real estate appraisers. Any real estate appraiser selected shall be a member of the initial Term. Upon receipt American Institute of such notice from Tenant exercising the renewal option herein grantedReal Estate Appraisers, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time years experience appraising commercial appraisal experience space located in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date vicinity of the appointment Premises, and shall act in accordance with the rules of the last appraiserAmerican Institute of Real Estate Appraisers. The Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with the improvements installed therein. If a party does not appoint a qualified only one appraiser within five (5) days after the other party has given notice of the name of the appraiseris selected, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties each party shall pay for the appraiser appointed by it and shall bear one-half of the cost fees and expenses of appointing the third appraiser and of paying that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the third appraiser’s fee. The Such third appraiser shall select one of this first two appraiser, however 's appraisal as the correct fair market rent. If three appraisers are selected, each party shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider bear the criteria above stated in determining fees and expenses of the Market Base Rental Rate. Within twenty (20) days after appraiser it selects and one-half of the selection fees and expenses of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. A. Landlord hereby grants to Tenant shall have an the option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) years, commencing on the day following the expiration of the original term of the Lease, such option to be exercised by Tenant by written notice to Landlord given not less than nine (9) months and not more than twelve (12) months prior to the expiration of the original term of this Lease. If Tenant gives such notice, the original term of the Lease shall be extended for one (1) additional period of five (5) years, subject to all of the terms, covenants and conditions of this Lease, except the Base Rent shall be increased as provided below. If Tenant is in default under this Lease on the date such notice is given (whether or not such default is later cured), then at Landlord's election, such notice shall be void; or, if Tenant is in default under this Lease after the giving of such notice (whether or not such default is later cured), then at Landlord's election, such option to extend and Tenant's exercise of same shall be void and this Lease shall terminate at the end of the original term (unless sooner terminated pursuant to this Lease).
B. In order the event said option is exercised, in accordance with the provisions hereof, then in lieu of the amount of the Base Rent set forth in Article 3 above, the amount of the Base Rent for the Property for the first thirty (30) months of the Option term shall be equal to exercise such optionone hundred percent (100%) of the Fair Rental Amount at the time of determination for space comparable to the Property located in the vicinity of the Project, Tenant but in no event shall notify Landlord the new Base Rent be less than the amount of the Base Rent payable immediately prior to the expiration of the original term of the Lease. The determination of the Fair Rental Amount shall exclude the specialized improvements that are specifically constructed at Tenant's cost in writing at least connection with the processing and refrigeration functions of Tenant's business. If said option is exercised by Tena▇▇, ▇▇ndlord and Tena▇▇ ▇▇▇ee to meet no later than two hundred seventy forty (270240) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the original term of the Lease as provided and negotiate in good faith to determine the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term new Base Rent for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by term. If Landlord in response to said exercise notice. Any and Tenant cannot agree on such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of new Base Rent, which the dispute shall be determined as set forth hereinsubmitted for appraisal. For that purpose, (ii) options to extend or to expand, which shall not be applicable, Landlord and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout employ one person or firm as an appraiser (hereinafter called the renewal term. As used herein"Independent Appraiser"), and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does they cannot appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a one person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.firm as an
Appears in 1 contract
Sources: Lease Agreement (Fresh Juice Co Inc)
Option to Extend. (A) Provided Tenant is not then in default, Tenant shall have an option the right to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate commencing upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising then existing Lease term upon all the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate same terms and election to initiate the appraisal process conditions as set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentencethis Lease, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified except those which require performance by Landlord in response to said exercise notice. Any such extension shall be upon all of the termswhich have already been performed by Landlord, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined adjusted as set forth herein, (ii) options hereinafter provided. In order to exercise Tenant’s option to extend or to expandthe term of this Lease, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share deliver written notice to Landlord no later than March 31, 2006. Base Rent shall be adjusted at the commencement of Operating Expenses throughout the renewal term. As used herein, and subject extended term to a sum equal to the limitations set forth fair market rental (“FMR”) for the Premises, but in no event less than the rental Tenant is paying as of the end of the initial term, as extended under this First Amendment. If Tenant has exercised its option to extend as provided in this paragraphLease, “Market Base Rental Rate” Landlord and Tenant shall mean as of any date commence negotiations to determine the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthFMR by mutual agreement. If Tenant, by written notice delivered Such negotiations shall commence no later than thirty (30) days after Tenant’s exercise of the option to extend. In the event Landlord and Tenant cannot mutually agree upon the FMR by the date Landlord notifies Tenant which is sixty (60) days after exercise of the Market Base Rental Rateoption to extend, objects to the Market Base Rental Rate FMR for the extended term shall be determined by appraisal in the manner hereafter set forth.
(B) In the event it becomes necessary under this paragraph to determine the FMR by appraisal, by the date which is seventy-five (75) days after Tenant’s exercise of the option to extend, Landlord and elects Tenant shall each appoint a real estate appraiser who shall be a member of the American Institute of Real Estate Appraisers and shall be experienced in the appraisal of rental value and adjustment to rent practices for office properties in the vicinity of the Building, or the parties may mutually agree upon one such appraiser if they so choose, and such appraiser(s) shall each determine the FMR for the Premises, taking into account the value of the Premises and the amenities provided, the location of the Premises and prevailing comparable rentals and rental adjustment practices in the area. Such appraiser(s) shall, within thirty (30) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. If the rate determination to FMR is established by one appraiser mutually selected by the parties, his or her appraisal shall be the FMR for the extended term, and the rent under this lease shall be adjusted by fair market rental adjustments as determined by the appraiser(s). If the FMR is established by two separate appraisals and the two appraisals differ by five percent (5%) or less of the highest appraisal, thenthen the average of the two appraisals shall constitute the FMR for purposes of this paragraph. If the FMR determined by two appraisers varies by more than five percent (5%) of the higher appraisal, the two appraisers appointed, within seven ten (710) days after submission of the date of Tenant’s objectionlast appraisal, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine third appraiser who shall be a member of the Market Base Rental RateAIREA and who shall be similarly qualified and experienced. Such third appraiser shall, such process to be completed within twenty (20) business days after his appointment, determine by appraisal the date of FMR in accordance with this paragraph. The FMR determined by the appointment of third appraiser for the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser Premises shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate controlling unless it is less than that set forth in the first paragraph of this Section. Each lower of the parties shall pay for appraisals previously obtained, in which case the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, value set forth in said lower appraisal shall be a person who has not controlling, or unless it is greater than that set forth in the higher appraisal previously acted obtained, in any capacity for either party. The appraisers which case the rental set forth in said higher appraisal shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averagedcontrolling. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not fails to extend appoint an appraiser, or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the Lease based upon the Market Base Rental Rate established required period in accordance herewithwith this Lease, the appraisal submitted by the appraiser property appointed and timely submitting his appraisal shall be controlling. This option to extend may not The cost of all appraisals under this paragraph shall be exercised borne equally by Landlord and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordTenant.
Appears in 1 contract
Sources: Office Lease (Eidos PLC)
Option to Extend. 53.1 Tenant shall have an option the right, at its option, to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) Term for one (1) additional term period of five (5) yearsyears (the "Extension Term"); provided and upon the condition that at all times within the twelve (12) month period immediately preceding the exercise of such option through the original Expiration Date, this Lease shall be in full force and effect and Tenant shall not be in default thereunder (and no condition exists which with notice and/or the passage of time would constitute a default), this Lease shall not have been assigned and Tenant shall personally be in use and occupancy of, and not subleasing, at least eighty percent (80%) of the Premises. In order The Extension Term shall commence on the day after the Expiration Date and shall expire on the fifth (5th) anniversary thereof unless the Extension Term shall sooner end pursuant to any of the terms, covenants or conditions of this Lease or pursuant to law. Tenant shall give Landlord written notice of Tenant's intention to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy option on or before the end of the ninth (2709th) days month prior to the expiration Expiration Date, but not earlier than the end of the Lease Term fourteenth (i.e.14th) month prior to the Expiration Date, by September 4, 2007) the time of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence. All of the terms, the option covenants and conditions of this Lease shall automatically terminate and be of no further continue in full force and effect during the Extension Term (including, without limitation, the Operating Expense Base for the determining escalations), except that the Base Rent shall be as determined in accordance with Subsection 53.2 and Tenant shall have no further right to extend the Lease Term pursuant to this Lease shall terminate upon the expiration of the initial Term. Upon Section 53.
53.2 Within sixty (60) days following Landlord's receipt of such notice from Tenant exercising of Tenant's written request therefor (but not earlier than the renewal option herein grantedfourteenth (14th) month prior to the Expiration Date), Landlord shall submit in writing within thirty give Tenant notice of its determination of the Base Rent which will be appropriate for the Extension Term (30) days a proposal for the "Fair Market Rent"), it being agreed that Landlord shall base its determination, as Landlord deems appropriate, upon the then current Market Base Rental Rate and projected rents for 51 59 spaces in the Office Building which are then for rent (per rentable square foot per annumor, “NNN”if none, those rented during the prior twelve (12) months) or projected to be for rent during the renewal Extension Term, adjusted for any special conditions applicable to such spaces and leases and for location, length of term. , amount of space and other factors Landlord deems relevant in computing rent for spaces in the Office Building, including adjustments for anticipated inflation, fluctuations in market rents and price conditions.
53.3 Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term 's determination of the Fair Market Rent for the Extension Term within fifteen (15) days of Tenant's receipt of the Landlord's notice setting forth the Fair Market Rent. If accepted by Tenant, this Lease and the Lease Term shall be extended without execution or delivery of any other or further documents, with the same force and effect as provided if the Extension Term had originally been included in the immediately preceding sentenceLease Term and the Expiration Date shall thereupon be deemed to be the last day of the Extension Term; provided, however, at Landlord's request, Tenant shall execute an amendment to this Lease confirming such extension and the terms thereof. Otherwise, if Tenant rejects Landlord's determination of the Fair Market Rent, Tenant shall be deemed to have elected revoked its option to extend and the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree expire on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordoriginal Expiration Date.
Appears in 1 contract
Sources: Office Lease (Continucare Corp)
Option to Extend. Tenant shall have an option to extend and renew the Lease as to all of the Premises ---------------- for three (but not as to any portion or portions thereof) for one (13) additional term consecutive terms, each consisting of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) 120, but not more than 240, days prior to the expiration of the Lease Term (i.e., by September 4, 2007) respective lease term of its election to exercise the option, upon which time Landlord shall submit in writing within 30 days thereafter a proposal for the then current Market Base Rental Rate (per rentable square foot per annum) for the extended term. Tenant shall have thirty (30) days from the receipt of said notice to (i) accept the proposed Base Rental Rate in writing to Landlord (ii) to reject the Base Rental Rate and elect the appraisal process set forth below or (iii) elect not to extend. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option options shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal Lease term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) other than as remain applicable under this Lease, options to extend extend, expand or to expandrights of refusal, which shall not be applicable, and (iii) Tenant Allowances or other economic concessions which shall pay Tenant’s Prorata Share of Operating Expenses throughout not be applicable to the renewal extension term. As used herein, and subject to the limitations set forth in this paragraph, “"Market Base Rental Rate” " shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in Base Rental Rate for comparable first class multi-tenant office buildings of comparable size, location and age age, with comparable tenants leasing comparable amounts of space, in the County of BoulderEl Paso, Colorado, at such time, taking into account all relevant factorsthe following factors (1) rent per rentable square foot; (2) operating expenses and real estate tax payments; (3) current rental escalators; and (4) rental concessions, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances grantedincluding tenant improvement allowances, if any, quality, age and location as applicable to market renewals of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordleases.
Appears in 1 contract
Sources: Office Lease (Sm&a Corp)
Option to Extend. (a) Provided that Tenant is not in default hereunder either at the time of exercise or at the time the extended term commences, Tenant shall have an the option to extend and renew the initial term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one FOR ONE (1) additional term ADDITIONAL PERIOD OF THREE (3) YEARS ("Option Period") on the same terms, covenants and conditions provided herein, except that upon such renewal the monthly installments of five (5) yearsAnnual Basic Rent due hereunder shall be determined at the time notice to extend is given. In order to exercise such option, Tenant shall notify exercise its option by giving Landlord in writing at least two written notice ("Option Notice") no later than one hundred seventy eighty (270180) days prior to the expiration of the Lease Term initial term.
(i.e., by September 4, 2007b) The monthly installments of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal Annual Basic Rent for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which Option Period shall be determined as set forth hereinfollows:
(i) Within fifteen (15) business days after Landlord's receipt of the Option Notice, the parties shall attempt to agree on the monthly rent for the Option Period in question BASED UPON THE THEN FAIR MARKET RENTAL VALUE of the Premises. If the parties agree on the monthly rent for the Option Period within such fifteen (15) day period, they shall immediately execute an amendment to this Lease stating the monthly rent for the Option Period.
(ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share The "then fair market rental value of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” Premises" shall mean the fair market monthly rental value of the premises as of any date the then annual net rental rate (exclusive commencement of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such timeOption Period, taking into account all relevant factorsconsideration the uses permitted under this Lease, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age size, design and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services providedPremises, and so forth. If Tenant, by written notice delivered no later than thirty comparable buildings located within a one (301) days after the date Landlord notifies Tenant mile radius of the Market Base Rental Rate, objects to Premises. In no event shall the Market Base Rental Rate determined by Landlord and elects to submit then fair market monthly rental value of the rate determination to appraisal, then, within Premises for the Option Period be less than the monthly installments of Annual Basic Rent last payable under the Lease.
(iii) Within seven (7) days after the expiration of the date of Tenant’s objectionfifteen (15) day period, each party party, at its cost and by giving notice to the other party, shall appoint a non-affiliated certified M.A.I. Appraiser that has real estate appraiser or commercial leasing salesperson ("Appraiser") with at least five (5) years’ ' full-time commercial appraisal or leasing experience in Boulder County the area in which the Premises are located to determine appraise and set the Market Base Rental Ratethen fair market monthly rent for the Premises for the Option Period.
(c) If Tenant objects to the monthly rent that has been determined, such process Tenant shall have the right to rescind its exercise of the option to extend and have this Lease expire at the end of the initial term, provided that Tenant pays for all reasonable costs incurred by Landlord in connection with the appraisal procedure. Tenant's election to allow this Lease to expire at the end of the initial term must be completed exercised by delivering written notice of exercise to Landlord within twenty ten (2010) days after the date rent determination procedure has been completed and Tenant has received notice of the appointment monthly rent as determined by appraisal. If Tenant does not so exercise its election to terminate this Lease within the ten (10) day period, the initial term of this Lease shall be extended as provided in this paragraph. Notwithstanding the foregoing, if Tenant elects to so rescind exercise of its option to extend and, at the time of such election there are less than one hundred eighty (180) days remaining on the initial term of the last appraiser. If a party does Lease, then, the termination of this Lease shall not appoint a qualified appraiser within five be effective until one hundred eighty (5180) days after the other party has given Landlord's receipt of Tenant's notice of rescission. During any period that the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph term of this Section. Each of Lease is so extended beyond the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementoriginal termination date, Tenant shall continue be required to pay the applicable Base Rent required for the last full month amount of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally monthly rent determined by the appraisers, shall be retroactive pursuant to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. appraisal procedure.
(d) This option to extend may not and any rights granted to Tenant hereunder shall be exercised personal to Tenant and the Lease any of its affiliates and subsidiaries. No rights granted to Tenant pursuant to this paragraph shall not be extended if Landlord has given in any way applicable to subtenants or assignees of Tenant notice unless such subtenant or assignee is an affiliate or subsidiary of default which default is not cured within any applicable cure periods or waived by LandlordTenant.
Appears in 1 contract
Sources: Office Building Lease (Xacct Technologies 1997 LTD)
Option to Extend. Landlord grants to Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) ---------------- term for one (1) additional term a period of five (5) yearsyears (such extension is hereafter referred to as the "Extended Term"). In order The Extended Term shall follow the expiration of the initial term set forth in paragraph 2(a) ("Initial Term"). All the provisions of this lease shall apply during the Extended Term except for the amount of the basic rent. The basic rent for the Extended Term shall be adjusted to ninety- five percent (95%) of the market rate; provided that in no event shall the basic rent for the Extended Term be less than the basic rent in effect at the expiration of the Initial Term. The option is further subject to the following terms and conditions:
(a) Tenant must deliver its irrevocable written notice of Tenant's exercise such optionof the option to Landlord not less than six (6) lease months, Tenant shall notify Landlord in writing at least two hundred seventy nor more than twelve (27012) days lease months, prior to the expiration of the Lease Term (i.e.Initial Term. Time is of the essence with respect to the time period during which Tenant must deliver to Landlord its written notice of exercise and, by September 4therefore, 2007) if Tenant fails to give Landlord its irrevocable written notice of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essenceoption within the applicable time period provided above, then the option shall automatically terminate expire and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty or effect.
(30b) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant The parties shall have thirty (30) days from the receipt date Landlord receives Tenant's notice of said notice from exercise in which to agree on the amount constituting the market rate. If Landlord and Tenant agree on the amount of the market rate, they shall immediately execute an amendment to notify this lease setting forth the expiration date of the Extended Term and the amount of the basic rent to be paid by Tenant during the Extended Term. If Landlord and Tenant are unable to agree on the amount of the market rate within such time period, then, at the request of either party, the market rate shall be determined in writing of the following manner: (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Raterequest of either party, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, Tenant shall each party shall appoint select a non-affiliated certified M.A.I. Appraiser that has at least licensed real estate appraiser with not less than five (5) years’ full-time commercial appraisal years experience in Boulder County to determine the Market Base Rental Ratebusiness of appraising commercial properties of the same type and use and in the same geographic area as the Premises, (ii) within fifteen (15) days of their appointment, such process to be completed two real estate appraisers shall select a third appraiser who is similarly qualified, (iii) within twenty thirty (2030) days after the date of from the appointment of the last third appraiser, the three appraisers so selected shall, acting as a board of arbitrators, then determine the amount of the market rate, basing their determination on standard procedures and tests normally employed in determining market rates and applying the factors included within the definition of market rate set forth in subparagraph (c) below. The decision of the majority of said appraisers shall be final and binding upon the parties hereto. If a majority of the appraisers are unable to agree on the market rate within the stipulated period of time, the three opinions of the market rate shall be added together and their total divided by three (3); the resulting quotient shall be the market rate. If, however, the low opinion and/or the high opinion are/is more than fifteen percent (15%) lower and/or higher than the middle opinion, the low opinion and/or the high opinion, as the case may be, shall be disregarded. If only one opinion is disregarded, the remaining two opinions shall be added together and their total divided by two (2) and the resulting quotient shall be the market rate. If both the low opinion and the high opinion are disregarded as stated in this paragraph, the middle opinion shall be the market rate. If a party does not appoint a qualified appraiser within five (5) days after the required time period, the appraiser appointed by the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set determine the Market Base Rental Ratemarket rate. The If the two appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Leaselease, after by giving five ten (510) days’ prior written days notice to the other party, may can apply to the then president of the county real estate board of Denverthe county in which the Premises are located, Colorado or to the presiding judge of the superior court of that county, for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Sectionparagraph. Each of the parties party shall pay for the expense and charges of the appraiser appointed by it and the parties shall bear one-half pay the expenses and charges of the cost of appointing the third appraiser in equal shares. When the market rate has been so determined, Landlord and of paying Tenant shall immediately execute an amendment to this lease stating the third appraiser’s fee. The third appraiserbasic rent for the Extended Term.
(c) As used herein, however selected, the "market rate" shall be a person who has not previously acted the monthly rent (triple net) then obtained for five (5) year fixed rate leases of comparable terms for premises in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated Project and in determining buildings and/or projects within the Market Base Rental Rate. Within twenty same geographical area of similar types and identity, quality and location as the Project.
(20d) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant Common area charges shall continue to pay be determined and payable as provided in paragraph 16 of this lease.
(e) Neither party shall have the applicable Base Rent required for right to have any court or other third party determine the last full month of market rate or the Lease term until the appraisers basic rent. Tenant shall not assign or otherwise transfer this option or any interest therein and any attempt to do so shall render this option null and void. Tenant shall have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not right to extend the Lease based upon term beyond the Market Base Rental Rate established Extended Term. If Tenant is in accordance herewith. This option to extend may not be exercised and default under this lease at the Lease shall not be extended if Landlord has given Tenant date of delivery of Tenant's notice of exercise to Landlord, then such notice shall be of no effect and this lease shall expire at the end of the Initial Term. If Tenant is in default under this lease on the last day of the Initial Term, then Landlord may in its sole discretion elect to have Tenant's exercise of the option be of no effect, in which default is not cured within any applicable cure periods or waived by Landlordcase this lease shall expire at the end of the Initial Term.
Appears in 1 contract
Sources: Lease (Atmi Inc)
Option to Extend. (a) Landlord hereby grants Tenant shall have two (2) consecutive options (individually an option “Option” and collectively the “Options”) to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration initial Term of the Lease Term for an additional period of six (i.e.6) months per Option (such period may be referred to as the “Option Term”), as to the entire Premises as it may then exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each option: (i) Tenant must be in continuous operation at and in occupancy of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by September 4Tenant’s independent certified public accountants, 2007and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its option hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change.
(b) of its Tenant’s election (the “Election Notice”) to exercise the option. If Tenant elects not Option To Extend must be in writing and given to extend or fails Landlord: (i) to timely exercise its optionthe first Option, time being no earlier than the date which is nine (9) months prior to, and no later than the date which is six (6) months prior to, the Expiration Date of the essenceinitial Term; and (ii) to exercise the second Option, no earlier than the date which is three (3) months prior to, and no later than the date which is, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Expiration Date of the initial Term. Upon receipt of such notice from If Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for either fails or elects not to exercise the then current Market Base Rental Rate applicable Option to Extend by not timely giving its Election Notice, then such Option to Extend shall be null and void. Further, the second Option shall be null and void if the first Option is not validly exercised or is waived, revoked or terminated as provided below after any exercise.
(per rentable square foot per annumc) Each Option Term shall commence immediately after the expiration of the preceding initial Term or Option Term, “NNN”) for the renewal termas applicable. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance leasing of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of Premises during the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Option Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth same terms and conditions contained in this paragraph, “Market the Lease except that: (i) for the first Option Term the Monthly Base Rental Rate” Rent shall mean as of any date the then annual net rental increase to a monthly rate equal to One and 10/100 Dollars (exclusive of real estate taxes, utilities and operating expenses$1.10) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location Rentable Area of the applicable buildingPremises and for the second Option Term shall increase to a monthly rate equal to One and 15/100 Dollars ($1.15) per square foot of Rentable Area of the Premises (and otherwise, rental concessionsduring each Option Term Tenant shall continue to pay Rent Adjustments, all other Rent and all other charges pursuant to the time Lease and Tenant shall continue to pay directly the particular rate under consideration became effective, size utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered the Lease); (ii) the Security Deposit shall be increased no later than thirty (30) days after before the date Landlord notifies Tenant Expiration Date of the Market initial Term or first Option Term, as applicable, to equal two hundred percent (200%) of the sum of the Monthly Base Rental RateRent and monthly Rent Adjustment Deposit payable for the following Option Term; and (iii) Tenant shall accept the Premises in its “AS-IS” condition without any obligation of Landlord to repaint, objects remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Market Base Rental Rate determined Term shall be deemed to mean the initial Term as extended by Landlord the applicable Option Term unless the context clearly requires otherwise.
(d) This Option to Extend is personal to Genitope and elects may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to submit any person or entity.
(e) Upon the rate determination to appraisal, then, within seven (7) days occurrence of any of the date following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, with the effect of canceling and voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience failure to timely exercise the Option to Extend in Boulder County to determine accordance with the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph provisions of this Section. Each .
(ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the parties shall pay for Option Term of any default on the appraiser appointed by it and shall bear one-half part of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of under the Lease term until or of any state of facts which with the appraisers have made their determination. The Market Base Rental Rate in questionpassage of time or the giving of notice, when finally determined by or both, would constitute such a default.
(iii) Tenant’s third default under the appraisers, shall be retroactive Lease prior to the commencement of the extension termOption Term, and notwithstanding that all such defaults may subsequently be cured.
(f) Without limiting the first Base Rent payment becoming due after the determination generality of any provision of the applicable Market Base Rental Rate Lease, time shall include be of the retroactive amounts essence with respect to all of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice provisions of default which default is not cured within any applicable cure periods or waived by Landlordthis Section.
Appears in 1 contract
Sources: Lease Agreement (Genitope Corp)
Option to Extend. 40.1 Landlord grants to Tenant the right to extend the term of this Lease for two (2) periods of two (2) years under the same terms and conditions existing in the original Lease except as set forth in this Article 40. Tenant shall have an option exercise such right to extend and renew the term of this Lease as by written notice to all Landlord no later than twelve (12) months prior to the end of the original term.
40.2 Basic Annual Rent shall be adjusted on the first day of the extension term to an amount equal to the fair market rental value of the Premises as of the commencement of the extension term, but in no event less than one hundred three percent (but not 103%) of the Basic Annual Rent payable during the last year of the original term.
40.3 Landlord shall obtain at its expense and deliver to Tenant an independent appraisal of the fair market rental value of the Premises as to any portion or portions thereof) for one (1) additional term of five (5) yearsthe commencement of the extension term. In order to exercise such optionFollowing its receipt of Landlord’s appraisal, Tenant shall notify may elect to obtain at its expense and deliver to Landlord in writing at least two hundred seventy (270) days prior to the expiration a second independent appraisal of the Lease Term (i.e., by September 4, 2007) fair market rental value of its election to exercise the optionPremises as of the commencement of the extension term. If Tenant elects not to extend or fails to timely exercise its optionobtain a second appraisal, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant appraisal shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthconclusive. If Tenant’s appraisal is no more than five percent (5%) less than Landlord’s appraisal, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant fair market rental value of the Market Base Rental Rate, objects to Premises shall be the Market Base Rental Rate determined by Landlord and elects to submit arithmetic average of the rate determination to two appraisals. If Tenant’s appraisal is more than five percent (5%) less than Landlord’s appraisal, then, within seven (7) days of the date of Tenant’s objection, each party two appraisers shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County third appraiser to determine appraise the Market Base Rental Rate, such process to be completed within twenty (20) days after the date fair market rental value of the appointment Premises as of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base fair market rental value of the Premises shall be the arithmetic average of the two appraisals closest in their determination of fair market rental value, but in no event less than one hundred three percent (103%) of the Basic Annual Rent payment becoming due payable during the last year of the original term. Landlord and Tenant shall bear equally the expense of the third appraiser.
40.4 All appraisers appointed hereunder shall have at least ten (10) years’ experience in the appraisal of commercial and industrial real property in the UTC/▇▇▇▇▇▇ ▇▇▇▇▇/Sorrento Valley areas of San Diego, and shall be members of professional organizations such as the American Appraisal Institute with a designation of MAI or equivalent.
40.5 As used herein, the term “fair market rental value of the Premises” shall mean the base rent that a ready and willing tenant would pay for the Premises, as of the commencement of the extension term, to a ready and willing landlord, for a term of two (2) years on the terms and conditions of the Lease, determined as if the Premises were exposed for lease on the open market for a reasonable period of time and taking into account all of the purposes for which such property may be used. Any appraiser appointed hereunder to determine the “fair market rental value of the Premises” shall take into account all of the other terms and conditions of this Lease, including, without limitation, that this Lease provides for the Basic Annual Rent to increase annually by three percent (3%) during the extension term.
40.6 Any increase in Basic Annual Rent under this Article 40 which is not determined until after the determination effective date of the applicable Market Base Rental Rate increase shall include nevertheless be retroactive to the effective date, and Tenant shall pay any such retroactive amounts increase with the installment of Rent next due.
40.7 Basic Annual Rent as of the commencement of the extension term as determined under this Article 40 (and as previously increased each year of the extension term pursuant to this Section 40.7) shall be increased each year of the extension term by three percent (3%). The first such increase shall become effective commencing with that monthly Base Rent installments accrued rental installment which is first due on or after the twelfth (12th) anniversary of the Term Commencement Date and unpaid. In no event may either Landlord or subsequent increases shall become effective on the same day of each calendar year thereafter for so long as this Lease continues in effect.
40.8 Tenant elect shall not have the right to exercise the option to extend the term, notwithstanding anything set forth above to the contrary: (a) during the time commencing from the date Landlord gives to Tenant a written notice that Tenant is in material default under any provision of this Lease based upon and continuing until the Market Base Rental Rate established default alleged in accordance herewithsaid notice is cured; (b) during the period of time commencing on the day after a monetary obligation to Landlord is due from Tenant and unpaid without any necessity for notice thereof to Tenant and continuing until the obligation is paid; or (c) after the expiration or earlier termination of this Lease. This The period of time within which the option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice or enlarged by reason of default which default is not cured within any applicable cure periods or waived by Landlordthe Tenant’s inability to exercise the option because of the foregoing provisions.
Appears in 1 contract
Sources: Sublease (Salmedix Inc)
Option to Extend. (i) Tenant shall have an the option to extend and renew the this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of three (3) years (hereinafter referred to as the "Renewal term") provided that Tenant is not in default pursuant to any of the terms of the Lease at the time of commencement of the Renewal Term.
(ii) The Renewal Term shall be upon the same terms, covenants and conditions as provided in this Lease, except that the not be entitled to any of the allowances, credits or payments provided in this Lease, and that the Base Years shall be adjusted to the first year of the Renewal Term.
(iii) The Base Rent at the commencement of the Renewal Term shall be ninety-five percent (595%) yearsof the prevailing market rate for the Washington, D.C. metropolitan are. In order no event, however, shall the prevailing market rate be less than the aggregate amount of the Base rent and Tenant's share of increases in Operating Expenses reserved under the Lease for the year immediately preceding the Renewal Term.
(iv) Such option to exercise such option, extend shall be exercised by Tenant shall notify giving written notice to Landlord in writing at least two hundred seventy not later than nine (2709) days prior months ▇▇▇▇▇ to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the optionoriginal term. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for of the then current Market date it receives notice of Tenants election to exercise its option to extend, notify Tenant of the Base Rental Rate (per rentable square foot per annum, “NNN”) for Rent to be charged at the renewal termcommencement o the Renewal Term. Tenant shall have thirty (30) days from form the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance date of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection Landlord's notification of the Market Base Rental Rate and election Rent to initiate be charged to nullify its exercise of the appraisal process set forth belowoption by providing Landlord written notice of the same. If Tenant fails nullifies its exercise of this option to timely extend, this option shall terminate and be of no further force and effect.
(v) Tenant agrees to accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided Premises in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except condition then existing as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidRenewal Term. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if responsible for performing any work, furnishing any materials or providing any allowances for improvements to the Premises, except as mutually agreed upon by Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordand Tenant.
Appears in 1 contract
Sources: Office Lease (Allied Research Corp)
Option to Extend. Landlord grants to Tenant shall have an option the right to extend and renew the Lease as Term (“Renewal Option”) for two (2) successive periods of up to seven (7) years each (“Option Term”), upon the following terms and conditions.
(a) Tenant must exercise each Renewal Option, if at all by providing Landlord with written notice thereof at least nine (9) months but not more than twenty four (24) months prior to the expiration date of the Premises then-current Lease Term (but “Renewal Notice”), which Renewal Notice shall specify the length of the Option Term. The Option Term may not as to any portion or portions thereof) for one (1) additional term of be less than five (5) years and if Tenant fails to specify the Option Term in the Renewal Notice, the Option Term shall be deemed to be seven (7) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects does not to extend or fails to timely exercise its option, time being of provide Landlord with the essenceRenewal Notice as and when herein specified, the option Renewal Option shall automatically terminate and be of no further force or effect. If Tenant exercises a Renewal Option, the Lease Term shall be extended for an additional period determined as provided above, upon the same terms and effect conditions as set forth in the Lease, except the Basic Rent and this Renewal Option. The Basic Rent for such Option Term shall be at ninety-five percent (95%) of the then-current “Market Rate” as defined below. Each of the two (2) Renewal Options may be exercised only once and once exercised, such Renewal Option shall not be effective during any subsequent Option Term.
(b) The Renewal Option shall apply to the entire Demised Premises, as amended or expanded as of the commencement date of each Option Term, and may not be exercised only as to a portion of the Demised Premises, Upon exercise of a Renewal Option, Landlord and Tenant shall enter into an amendment to the Lease memorializing the terms and conditions of the Lease during such Option Term. If there is a Default by Tenant at any time between the date it exercises a Renewal Option and the date upon which such Option Term is to commence, then Landlord at its option may elect to treat the exercise of such Renewal Option as ineffective in which case this Lease shall terminate upon the expiration of the initial then-current Lease Term. Upon receipt of such notice from .
(c) The Renewal Option is personal to Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days and to any successor transferee under a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate Permitted Transfer and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as event of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Transfer by Tenant, by written notice delivered no later other than thirty (30) days after a Permitted Transfer, whether or not with the date Landlord notifies Tenant consent of the Market Base Rental RateLandlord, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days any Renewal Options which have not been exercised as of the date of Tenant’s objection, each party such Transfer shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordautomatically terminate.
Appears in 1 contract
Option to Extend. 2.7.1 Subject to the terms and conditions set forth below, Tenant shall have an the option to extend and renew the Lease Term as to all all, but not less than all, of the Premises (but not as to any portion or portions thereof) then-existing Premises, for one (1) additional term extension period of five (5) years. In order to exercise such optionthe option to extend, Tenant must satisfy all of the following requirements: (i) Tenant shall notify have provided Landlord in writing with written notice of Tenant’s intention to exercise the option to extend, which notice must be received by Landlord no earlier than twelve (12) months and not later than six (6) months before the expiration of the initial Lease Term; (ii) as of the date that Tenant notifies Landlord of Tenant’s intention to exercise the option and as of the expiration of the initial Lease Term, there shall be no Event of Default by Tenant under this Lease; and (iii) at least two hundred seventy (270) days no time prior to the expiration of the initial Lease Term shall there have been any assignment or subletting of more than twenty-five percent (i.e., by September 4, 200725%) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being rentable square footage of the essencePremises, except a Permitted Transfer under Section 4.16.7.
2.7.2 In the event the initial Lease Term is extended as provided in this paragraph, Tenant shall, upon request of Landlord, evidence any such extension through the execution of a lease amendment to be provided by Landlord. The extension shall be on the same terms, covenants and conditions as set forth in this Lease; provided that, the option monthly Base Rent during the extension period shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration ninety-five percent (95%) of the initial Termfair market rental rate. Upon receipt Fair market rental rate (“Fair Market Rental Rate”) shall mean the rental rate then in effect for comparable Class “A” office properties in the Kirkland/I-405 Corridor office market, of such notice from comparable size, quality and location, at the commencement of the extension period, giving appropriate consideration to annual rental rates per rentable square foot, the type of escalation clauses (including, without limitation, operating expenses, real estate taxes), the extent of liability under the escalation clauses (e.g. whether determined on a “net lease” basis or by increase over a particular base year or base dollar amount), abatement provisions reflecting free rent and/or no rent during a certain period, brokerage commissions, if any, length of lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and any other tenant concessions then being offered in the marketplace.
2.7.3 If Landlord and Tenant exercising cannot agree on the renewal option herein granted, Landlord shall submit in writing Fair Market Rental Rate within thirty (30) calendar days of receipt by Landlord of the notice of intent to exercise the option to extend, Landlord shall, no more than fifteen (15) calendar days thereafter, select an independent M.A.I. real estate appraiser or real estate broker (certified in the State of Washington) with at least ten (10) years experience in the Puget Sound, Washington commercial real estate market, who shall prepare a proposal for written market report of the then current Fair Market Base Rental Rate using the assumptions described in this paragraph. The market report shall be completed and delivered to Tenant and Landlord within fifteen (per rentable square foot per annum, “NNN”15) for the renewal term. Tenant shall have thirty (30) calendar days from the receipt date Landlord selects the appraiser/broker. Such appraiser/broker’s determination of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Fair Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If shall be determinative unless Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease disputes it as provided in the immediately preceding next sentence. If Tenant disputes such determination, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise within fifteen (15) calendar days following delivery of the renewal option at the Market Base Rental Rate specified by market report, deliver to Landlord in response to said exercise notice. Any written notice (a) that Tenant disputes such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicabledetermination, and (iiib) of the identity of the appraiser/broker selected by Tenant meeting the qualifications set forth in this paragraph. The appraiser/broker selected by Tenant shall pay submit his market report of the Fair Market Rental Rate using the assumptions described in this paragraph within fifteen (15) calendar days following the delivery of Tenant’s Prorata Share notice to Landlord disputing the initial market report. If the two market reports are within five percent (5%) of Operating Expenses throughout each other (based on the renewal termhigher number), the Fair Market Rental Rate shall be the average of the two appraisers/brokers’ determination of fair market rent. As used hereinIf not, and subject to then within ten (10) calendar days after the limitations delivery of the second market report, the two appraisers/brokers shall appoint a third appraiser/broker meeting the qualifications set forth in this paragraph, “and the third appraiser/broker shall deliver his decision within ten (10) calendar days following his selection and acceptance of the market report assignment. The third appraiser/broker shall be limited in authority to selecting, in this opinion, which of the two earlier market report determinations best reflects the Fair Market Base Rental Rate under the assumptions set forth in this paragraph. The third appraiser/broker must choose one of the two earlier determination, and, upon doing so, the third appraiser/broker’s determination shall be the controlling determination of the Fair Market Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each Each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine pay the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name costs and fees of the appraiser/broker it selected; if a third appraiser/broker is selected, then the single appraiser shall party whose determination is not selected to be the sole appraiser Fair Market Rental Rate by said third appraiser/broker shall pay all of said appraiser/broker’s costs and shall set fees.
2.7.4 Notwithstanding anything herein to the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly contrary, if Tenant and attempt to set the Market Base Rental Rate. If they Landlord are unable to agree on the Fair Market Base Rental Rate within twenty (20) calendar days after Tenant’s election to exercise its option to extend hereunder, provided that at least six (6) months remain after the expiration of the 20 day period before the expiration of the initial Lease Term, Tenant shall have the right to elect to revoke and terminate its election to exercise its option to extend the Lease Term up to the date that is six (6) months prior to the second appraiser has been appointed, they shall elect a third appraiser meeting expiration date of the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rateinitial Lease Term. If the appraisers are unable Tenant elects to agree on the third appraiser, either of the parties revoke its election to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate exercise its option as set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementpreceding sentence, Tenant shall continue to pay the applicable Base Rent required remain liable for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordappraisal/broker fees it incurred under subparagraph 2.7.3 above.
Appears in 1 contract
Sources: Triple Net Lease (HouseValues, Inc.)
Option to Extend. Provided that Tenant shall have an option is not in default of the performance or observation of any of the terms or provisions of this Lease after notice to Tenant and expiration of applicable grace and cure periods (as defined in Section 7.1 herein), Tenant may elect to extend and renew the Term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) years. In order to exercise years (the “Extension Term”), by giving Landlord notice of such option, Tenant shall notify Landlord in writing at least two hundred seventy election no later than twelve (27012) days months prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such Such extension shall be upon all of the terms, covenants, and conditions and covenants of contained in this Lease except as that Tenant shall have no further right to (i) extend the amount of Term and that the Base Rent, which Rent for the Extension Term shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of at fair market rent for comparable space in comparable first class multi-tenant office buildings of comparable size, location and age properties in the County of Boulder, Colorado, at such time, Watertown area taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, Landlord and Tenant are unable to agree on the amount of such fair market rent by written notice delivered no later than the date that is thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objectionelection notice based on rental rates and terms for comparable space in the Greater Boston area, then Landlord shall promptly specify in writing the rent (the “Landlord’s Rental Rate”) at which Landlord is willing to lease the Premises for the Extension Term and Tenant shall promptly specify in writing the rent ( the “Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each party appoint one appraiser and the two appraisers so appointed shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed fair market rent within twenty (20) thirty days after the date of the appointment of the last appraiserTenant’s election notice. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the such appraisers are unable to agree on the third appraiseramount of such fair market rent within such 30-day period, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of they shall appoint a third appraiser within ten (10) days of the expiration of such period, who meets the qualifications stated in this Section, which selection shall be made within three (3) daysinstructed to select, as between the rents chosen by the two appraisers, the rent that is closest to the third appraiser’s estimate of Fair Market Rent. All determinations of Market Base Rental Rate The fair market rent shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed amount so selected by it and shall bear one-half of the cost of appointing the third appraiser and shall be conclusive on the Landlord and Tenant. Each party shall bear the cost of paying its appraiser, and the cost of the third appraiser’s feeappraiser shall be split equally between parties. The third appraiser, however selected, ’s estimate shall be a person who has not previously acted in any capacity for either party. The based on the data supplied and used by the original two appraisers shall be instructed to consider and the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, findings made by the third appraiser shall determine be set forth in writing. EXECUTED as a sealed instrument in two or more counterparts on the Market Base Rental Rate day and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averagedyear first above written. If the Market Base Rental Rate is not established for the extended term prior to its commencement/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Its: Manager /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Its: Vice President, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in questionCorporate Affairs, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.General Counsel & Secretary
Appears in 1 contract
Sources: Lease (pSivida Corp.)
Option to Extend. Tenant shall have an option to extend and renew At the Lease as to all expiration of the Premises original Term hereof, Tenant may extend this Lease for two (but not as to any portion or portions thereof2) for one (1) additional term extended terms of five (5) years. In order years by giving Landlord unequivocal written notice of its intention to exercise such option, Tenant shall notify Landlord in writing do so at least two hundred seventy nine (2709) days months prior to the expiration of the Lease said original Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial extended Term. Upon receipt of such notice from Tenant exercising Notwithstanding the renewal option herein grantedforegoing, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not no right to extend the term Term of this Lease if Tenant is in material default beyond any applicable cure period under the Lease as provided in on the immediately preceding sentence, Tenant shall be deemed to have elected to extend date of giving such notice or on the Lease Term for the period specified in Tenant’s original notice date of exercise commencement of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise noticesuch extended term. Any such extension The extended terms shall be upon all of the termsterms and conditions of this Lease, conditions and covenants except that the following rights of Tenant during the original Term of this Lease except as (if and to the extent expressly provided for in this Lease) shall not apply during such option periods: (ia) any right to rent-free possession, (b) any right to further extension of the amount of Term beyond the extended term set forth hereinabove, and (c) any right to continue to pay the same Base Rent. Landlord and Tenant hereby acknowledge and agree that the Base Rent during any extended terms shall be one hundred percent (100%) of the “Fair Market Rental” for the Premises, as determined in accordance with this Section, Landlord’s initial estimate of which shall be determined as set forth herein, provided to Tenant by Landlord no later than nine (ii9) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject months prior to the limitations set forth in this paragraph, “Market Base Rental Rate” expiration of said original Term or extended Term. The parties shall mean as of any have until the date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a that is five (5) year months prior to the date that said original Term or extended Term will expire (the “Deadline for Rental Agreement”) in order to agree on Base Rent for such extended term. If the parties agree on the Base Rent for such extended term on or before the Deadline for Rental Agreement, they shall immediately execute an amendment to this Lease stating the Base Rent for the extended term. If the parties are unable to agree on Base Rent for such extended term on or before the Deadline for Rental Agreement, then the Fair Market Rental shall be established by appraisal as follows: (i) of space in comparable first class multi-tenant office buildings of comparable size, location and age in within ten (10) days after the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances grantedDeadline for Rental Agreement (or, if anylater, qualitywithin ten (10) days after Landlord or Tenant has given to the other a written demand that the Fair Market Rental be determined in accordance with the provisions of this Section 4(d) [a “Written Demand for Determination”]), age Landlord and location Tenant shall each give to the other a written notice setting forth its final determination of the applicable building, rental concessionsFair Market Rental (collectively, the time “Final Fair Rental Notices”); (ii) if only one (1) Final Fair Rental Notice is timely given, then that one (1) Final Fair Rental Notice shall conclusively establish the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes Fair Market Rental; (iii) if both Landlord and utilities, relative services providedTenant give Final Fair Rental Notices, and so forth. If the Final Fair Rental Notices are different in any respect, then the Fair Market Rental shall be conclusively established by an independent appraiser mutually chosen by Landlord and Tenant; provided that, by written notice delivered no later than if Landlord and Tenant have not agreed upon, and engaged, such appraiser within thirty (30) days after the date Landlord notifies Tenant of the Market Base Deadline for Rental RateAgreement (or, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisalif later, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after a Written Demand for Determination has been given), then, either Landlord or Tenant shall have the date right, but no obligation, to file a declaratory relief action in the Superior Court in the county where the Premises are located for the purpose of having that Court appoint, or impose a mechanism for appointment of, an independent appraiser; provided further that, if Landlord and Tenant shall both then agree to allow their attorneys to select the appraiser, instead of filing a declaratory relief action, Landlord and Tenant shall each engage a duly licensed California attorney with commercial leasing experience of at least ten (10) years, which attorneys shall, by their agreement, select the appraiser; (iv) Landlord and Tenant shall share equally the fees and expenses of the appointment selected appraiser and shall each pay its own attorneys’ fees, except that, if a declaratory relief action is filed, then, in connection with making its decision and entering its judgment, the Court shall, in its discretion, allocate between Landlord and Tenant all costs and fees incurred by either or both of the last appraiser. If a party does them, including, but not appoint a qualified appraiser limited to, attorneys’ fees and appraisal fees; (v) within five thirty (530) days after the other party has given notice of appraiser’s engagement, the name of appraiser shall deliver to Landlord and to Tenant the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day ’s determination of which of the two (2) appraisers are to set Final Fair Rental Notices (the Market Base “Chosen Fair Value Rental Rate. If Notice”) is, in the appraisers are unable to agree on appraiser’s opinion, the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply closest to the then president current fair market value rent for the Premises, based upon the then current highest and best use thereof, without any consideration given to the then current uses of the real estate board Premises, or any portion thereof, but with consideration given to any enhancement or diminution in fair market value rent arising from the terms or conditions of Denver, Colorado for this Lease; and the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate amount set forth in the first paragraph of this Section. Each of Chosen Fair Value Rental Notice shall be deemed to be the parties shall pay for Fair Market Rental; and (vi) the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be required to give to Landlord and to Tenant a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three written statement of the appraiser’s Market Base reasoning and justification for selection of the Chosen Fair Value Rental Rates Notice; the appraiser shall not be permitted to decide on a middle ground, or to suggest any compromise; the appraiser’s sole function shall be averaged excluding any single to determine the Chosen Fair Value Rental Notice, and provide his or her reasons therefor. Landlord and Tenant hereby acknowledge that they intend that the Fair Market Base Rental Rate which shall be deemed to be the rent per square foot of rentable area of office space that is either ten percent then being charged for office space located in office buildings in the vicinity within a radius of one (10%1) higher or lower than mile of the middle appraisal Building that are comparable in quality and offer similar amenities to the Building, and involving renewing leases with similar terms and conditions, and involving the use of Market Base Rental Rate the premises for general office purposes, and taking into account whether a real estate brokerage commission is paid as may be required hereunder and in the amount as set forth below. The office spaces used for comparison shall be reasonably comparable in size, quality and design to the Premises, and such office spaces used for comparison shall be reasonably comparable to the Premises with respect to their location within such buildings. The appraiser shall also consider the quality and quantity of tenant improvements, the services provided by each landlord to such tenant, and the remaining appraisals shall financial strength of Tenant, as well as all other concessions then be averagedbeing offered to similar tenants. If In the event that the Fair Market Base Rental Rate is not established for before the commencement of the extended term prior to its commencementterm, Tenant shall continue to pay the applicable Base Rent required for the last full month in effect as of the Lease term until end of the appraisers have made their determination. The original Term; and when the Fair Market Rental has been established, the new Base Rental Rate in question, when finally determined by the appraisers, Rent shall be retroactive to the commencement retroactively effective as of the extension beginning of the extended term, and Tenant shall pay Landlord any deficiency within thirty (30) days after the first establishment of the new Base Rent. If Tenant has overpaid Base Rent payment becoming due after during such period, such overpayment shall be offset against Rent thereafter coming due. Landlord agrees, at Tenant’s election, to pay to the determination Broker for Tenant identified in the Basic Lease Information, or to such other broker as Tenant may then choose to represent Tenant, a commission equal to two percent (2%) of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued payable during said extended term. Said commission shall be due and unpaid. In no event may either payable when Tenant gives to Landlord or Tenant elect not its written notice electing to extend the Lease based upon Term as above provided or, if later, when the Fair Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddetermined as above provided.
Appears in 1 contract
Option to Extend. Tenant shall have an option to extend Provided Lessee has not been and renew the is not in default of any term or condition of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term commencement of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant , lessee shall have thirty (30) days from the receipt of said notice from Landlord one option to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend renew the term of the Lease as provided lease for one additional five year term, on the same terms and conditions of the Lease, except that the Base Rent shall be adjusted to the then prevailing market rental rate for a comparable leases in the immediately preceding sentence, Tenant comparable areas of the West San ▇▇▇▇▇▇▇▇ Valley Area. Such option shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option exercised (if at the Market Base Rental Rate specified all) by Landlord in response to said exercise Lessee giving Lessor at least 270 days prior irrevocable written notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which The prevailing market rental shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout in the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net following manner: Prevailing market rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, shall be determined taking into account all relevant factors, including, without limitation, use, location and/or floor level within including (to the applicable building, definition extent relevant) number of rentable area, leasehold improvements provided, credits or allowances grantedmonths of free rent, if any, quality, age and location any (which shall be part of the applicable buildingdetermination of the rental rate), rental concessionsLessee improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to lease space at other than then current prevailing market rate, the time lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the particular rate under consideration became effectiveLessor was forced to lease the space by external legal, size economic, or other pressures not generally applicable to the market, or the sublease or space by a sublessor not primarily in the business of tenant, credit leasing space. Prior to the date which is five (5) months before the expiration of tenant, relative operating expenses, taxes and utilities, relative services providedthe then current term, and so forthassuming that Lessee has properly exercised its option to renew, Lessor shall give Lessee notice of Lessor's proposed prevailing market rental value for the Premises. If Tenant, by Lessee shall give Lessor written notice delivered no later than within thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects thereafter as to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiserwhether or not Lessee agrees with Lessor's proposed prevailing market rental value. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiserLessee disagrees with Lessor's proposed prevailing market rental value, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt negotiate in good faith to set resolve their differences for a period of thirty (30) days. Upon the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty expiration of such thirty (2030) days after the date the second appraiser has been appointedday period, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of if the parties are not in agreement as to this Lease, after such fair market rental value by giving five (5) days’ prior written notice to the other party, may apply to such notice containing the then president name of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the an appraiser appointed by it and such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall bear one-half of the cost of appointing the third appoint its own appraiser and of paying give notice thereof to the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either initiating party. The appraisers shall be instructed to consider If the criteria above stated in determining second appraiser is not appointed within such fifteen day period, then the Market Base Rental Rate. Within twenty (20) days after appraiser selected by the selection of the third appraiser, the third appraiser initiating party shall determine the Market Base Rental Rate and all three fair market rental value of the appraiser’s Market Base Rental Rates Premises, and such appraisal shall be averaged excluding any single Market Base Rental Rate which binding upon the parties. If the second appraiser is either timely appointed, then the two appraisers shall confer and attempt to agree on the prevailing market value. If the two appraisers are unable to agree, but the higher appraisal is no more than ten percent (10%) higher or lower than the middle appraisal lower appraisal, then the prevailing market rental value shall be the average of Market Base Rental Rate and the remaining appraisals shall then be averagedtwo appraisals. If the Market Base Rental Rate higher appraisal is not established for more than ten percent (10%) greater than the extended term prior to its commencementlower appraisal, Tenant the two appraisers shall continue to pay together select a third appraiser who shall also determine the applicable Base Rent required for prevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the last full month prevailing market rental value, the value agreed upon by the two appraisers shall be the prevailing market rental value. If the three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the Lease term until the two closest appraisals. All appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement members of the extension termMAI and shall have at least ten (10) years' experience appraising similar property in the West San ▇▇▇▇▇▇▇▇ Valley Area. Each party shall bear the cost of the appraiser appointed by such party, and the first Base Rent payment becoming due after parties shall share equally in the determination cost of the applicable Market Base Rental Rate third appraiser, if appointed. If the two appraisers initially appointed are unable to agree on a third appraiser, then either party shall include have the retroactive amounts right to apply to the presiding judge of monthly Base Rent installments accrued and unpaidthe Superior Court having jurisdiction over the Premises for the appointment of a third appraiser. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established The rent determined in accordance herewith. This option to extend may not the foregoing shall be exercised and subject to adjustments pursuant to the attached Addendum to Standard Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordparagraph 59-Rent Adjustments - Extended Term.
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease Net (Netcom Systems Inc)
Option to Extend. Provided Tenant is not in Default of any term or condition of the Lease as of the New Termination Date, Tenant shall have an the option to extend and renew the term of the Lease as to all of the entire Premises (but not as to any portion or portions thereofherein expanded) for one (1) additional term of five (5) yearsyear term (“Renewal Term”), on the same terms and conditions of the Lease, except that the Base Rent shall be adjusted to an amount equal to the then prevailing market rental rate for comparable leases for similar projects in Oakland’s Lake ▇▇▇▇▇▇▇ sub-market (but not less than the Base Rent in effect immediately prior to the commencement of the Renewal Term). In order Such option shall be exercised (if at all) by Tenant giving irrevocable written notice to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy fifteen (27015) days months prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the optionExtended Term. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the The option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon personal to the expiration of the initial Termcurrently named Tenant. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which The prevailing market rental rate shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout in the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net following manner: Prevailing market rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, shall be determined taking into account all relevant factors, including, without limitation, use, location and/or floor level within including (to the applicable building, definition extent relevant) number of rentable area, leasehold improvements provided, credits or allowances grantedmonths of free rent, if any, quality, age and location any (which shall be part of the applicable buildingdetermination of the rental rate), rental concessionstenant improvement obligations, moving allowances, and leasing commissions and costs. The term “comparable leases” shall not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to lease space at other than then current prevailing market rate, the time lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the particular rate under consideration became effectivelandlord was forced to lease the space by external legal, size economic, or other pressures not generally applicable to the market, or the sublease of tenant, credit space by a sublandlord not primarily in the business of tenant, relative operating expenses, taxes and utilities, relative services providedleasing space similar to the Premises. Prior to the date which is twelve (12) months before the expiration of the Extended Term, and so forthassuming that Tenant has properly exercised its option to renew, Landlord shall give Tenant notice of Landlord's proposed prevailing market rental value for the Premises. If Tenant, by Tenant shall give Landlord written notice delivered no later than within thirty (30) days after thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the date Landlord notifies Tenant parties shall negotiate in good faith to resolve their differences for a period of thirty (30) days. Upon the Market Base Rental Rateexpiration of such thirty day period, objects if the parties are not in agreement as to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisalsuch fair market rental value, then, within seven (7) days of the date of Tenant’s objection, each then either party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial may initiate appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed fair market rental value by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply such notice containing the name of an independent real estate broker or a person with an MAI designation with at least ten (10) years of experience in leasing commercial office space in the Oakland Lake ▇▇▇▇▇▇▇ submarket area (a “Qualified Appraiser”) appointed by such initiating party. Within fifteen (15) days thereafter, the party receiving such notice shall appoint its own Qualified Appraiser and give written notice thereof to the initiating party. If the second Qualified Appraiser is not appointed within such fifteen day period, then president the Qualified Appraiser selected by the initiating party shall determine the fair market rental value of the real estate board Premises, and such appraisal shall be binding upon the parties. If the second Qualified Appraiser is timely appointed, then the two Qualified Appraisers shall confer and attempt to agree on the prevailing market rental value. If the two Qualified Appraisers are unable to agree, but the higher appraisal is no more than five percent (5%) higher than the lower appraisal, then the prevailing market rental value shall be the average of Denverthe two appraisals. If the higher appraisal is more than five percent (5%) greater than the lower appraisal, Colorado for the selection of two Qualified Appraisers shall together, within ten (10) business days, select a third appraiser Qualified Appraiser who meets shall select one of the qualifications stated in this SectionQualified Appraisers determined prevailing market rental value, which selection and that determination shall be made within three (3) daysthe prevailing market rental value. All determinations of Market Base Rental Rate appraisers shall be subject to members of the limitations on Market Base Rental Rate set forth MAI and shall have at least ten (10) years' experience appraising similar property in the first paragraph of this SectionOakland Lake ▇▇▇▇▇▇▇ sub-market area. Each party shall bear the cost of the parties shall pay for the appraiser appointed by it such party, and the parties shall bear one-half of share equally in the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averagedif appointed. If the Market Base Rental Rate is not established two appraisers initially appointed are unable to agree on a third appraiser, then either party shall have the right to apply to the presiding judge of the Superior Court having jurisdiction over the Premises for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month appointment of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorda third appraiser.
Appears in 1 contract
Sources: Lease (Pandora Media, Inc.)
Option to Extend. 27.01 Tenant shall have an the option to extend and renew the Term of the Lease as to all of the Premises for two (but not as to any portion or portions thereof2) for one (1) additional term periods of five (5) yearsyears (each, a “Renewal Period”) upon all of the terms, covenants and conditions contained in the Lease except that Base Rent for the Renewal Period shall be equal to the Renewal Rate (as defined below). In order Tenant shall be entitled to exercise such option, its option to extend hereunder so long as (i) Tenant shall notify have delivered to Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) written notice of its election to exercise such option not less than six (6) months prior to the option. If Tenant elects not to extend or fails to timely exercise its option, time being commencement date of the essenceapplicable Renewal Period, the option and (ii) Tenant shall automatically terminate and not be of no further force and effect and in default under this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within Lease.
27.02 Within thirty (30) days a proposal of its receipt of notice from Tenant of Tenant’s election to exercise its renewal option, Landlord shall notify Tenant of the Renewal Rate to be charged as Base Rent for the Renewal Period. As used herein, the term “Renewal Rate” shall mean the rental rates then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for being charged to tenants of comparable size to Tenant in comparable buildings in the renewal termarea. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of its desire to accept the proposed Market Base Rental Renewal Rate or object to the Renewal Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject rejects the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentenceRenewal Rate, Landlord and Tenant shall be deemed attempt to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise noticenegotiate a mutually acceptable Renewal Rate. Any such extension shall be upon all of the termsIf, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than after thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Ratedays, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they Tenant are unable to agree reach agreement on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointedRenewal Rate, they then this Lease shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after terminate on the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate initial Term and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month Term of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordpursuant to this Article 27.
Appears in 1 contract
Option to Extend. (a) Provided that Tenant is. in possession of the Premises on the date it exercises its right and option to extend this Lease and is not in default of its obligations under this Lease, Tenant shall have the right and option (the "Extension Option") to extend the Initial Term of this Lease for three (3) extended terms of five (5), consecutive years (each being an "Extended Term,"). The Extended Term shall be on all the, terms and conditions of this, Lease except that the Base Rent for the Extended Term shall be established and fixed as set forth in Exhibit B.
(b) Tenant shall exercise its Extension Option for the Extended Term by giving written notice to Landlord of its desire to do so not later than six (6) months prior to the Expiration Date of the Term then in effect. The giving of such notice by Tenant shall automatically extend the Term of this Lease for the Extended Term, and no instrument of renewal need be executed. In the event that Tenant fails to give such notice to Landlord in a timely manner as aforesaid, time being of the essence thereof, this Lease shall automatically terminate at the end of the Term then in effect and Tenant shall have no further option to extend the Term of this Lease.
(c) At the expiration of the third Extended Term, Tenant shall have an option to further extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are consecutive ten (10) year terms (each being an "Additional Extended Term"). The Base Rent for the Additional Extended Term shall, be agreed upon by the parties in writing for each renewal period upon six (6) months notice to set Landlord from Tenant that it intends to exercise its option for an Additional Extended Term. In the Market Base Rental Rate. If event that the appraisers are unable to parties cannot agree on the Base Rent for each Additional Extended Term, the Landlord and the Tenant will each select an appraiser who will determine a fair market rent. Thereafter, the two appraisers will establish the Base Rent predicated on their appraisals. In the event that the two selected appraisers cannot agree on the Base Rent, said appraisers shall select a third appraiser, either who shall establish the Base Rent at an amount not to exceed the highest nor less than the lowest of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) daystwo original appraisals. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the The cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined shared equally by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordparties.
Appears in 1 contract
Option to Extend. In the event that Tenant is not in default ---------------- hereunder beyond any applicable grace or cure period, either at the date of exercise or at the date upon which the Additional Term (as hereafter defined) would otherwise commence, Tenant shall have an the option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) yearsyears (the "Additional Term"). In order Such option shall be exercised, if at all, by written notice from Tenant to Landlord of Tenant's intention to exercise such option, Tenant the option which shall notify Landlord in writing at least two hundred seventy be given not more than fifteen (27015) days months and not less than twelve (12) months prior to the expiration of the Lease Term term specified in this Amendment. Within sixty (i.e., by September 4, 200760) days of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantednotice, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. notify Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not terms upon which Landlord is willing to extend the term of the Lease as provided Lease. Tenant shall notify Landlord within sixty (60) days of its receipt of Landlord's notice if Tenant accepts Landlord's terms and conditions for the extension of the Lease. Failure of Tenant to deliver its notice to Landlord within the sixty (60) day period shall be deemed a rejection of the Landlord's terms and conditions and the term shall not be extended and Tenant shall have no further right to extend the term. In the event that Tenant is not entitled to exercise the option, or is entitled to exercise the option but fails to do so in the immediately preceding sentencemanner and within the time herein specified, such option shall lapse and thereafter not be exercisable by Tenant. In the event that Tenant shall be deemed entitled to have elected exercise and shall timely and properly exercise the option pursuant to extend this Paragraph 10, the Lease Additional Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions terms and covenants provisions of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five as amended, except that:
(5a) days’ prior written notice to The Additional Term shall commence immediately upon the other party, may apply to the then president expiration of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three Extended Term.
(3b) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph The provisions of this SectionParagraph 10 shall not apply with respect to Additional Term.
(c) The option to extend the term (the "Extension Option") is personal to Tenant and may not be exercised or assigned, voluntarily or involuntarily, by, or to, any person or entity other than Tenant. Each of In the parties shall pay for event that at the appraiser appointed time such Extension Option is exercisable by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiserTenant, however selectedthis Lease has been assigned, shall be or a person who has not previously acted in any capacity for either party. The appraisers shall be instructed sublease exists as to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either more than ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until Premises any portion of the appraisers have made their determination. The Market Base Rental Rate in questionPremises, when finally determined by the appraisersExtension Option shall be deemed null and void and Tenant and any assignee or sublessee, shall be retroactive not have the right to exercise the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordExtension Option.
Appears in 1 contract
Sources: Office Lease (Us Facilities Corp)
Option to Extend. So long as the Lease is in full force and effect and, at the time of exercise of the option to renew, Tenant is not in default under the Lease beyond any applicable notice and cure period provided herein, Tenant shall have an option two (2) successive options to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional a term of five (5) years. In order years each (each, an "Option"), on the same terms and conditions set forth in the Lease, except as modified by the terms and conditions set forth below:
i) If Tenant elects to exercise an Option, Tenant must provide Landlord with written notice of its election to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy Option no earlier than the date which is eighteen (27018) days months prior to the expiration of the Lease Term then current term and not later than the date which is six (i.e., by September 4, 20076) of its election months prior to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Termthen current term of the Lease. Upon receipt If Tenant fails to timely provide such notice, Tenant shall have no further right to exercise any Option or to extend the term of such notice from the Lease. Time is of the essence for this provision.
ii) The Base Rent for each Option term shall be the Fair Market Rental Rate of the Premises in effect at the expiration of the then current term of the Lease. "Fair Market Rental Rate" shall be the then going rate for comparable space at the ▇▇▇▇▇▇ Airport Center and other comparable buildings in the Airport sub-market. The determination of the Fair Market Rental Rate shall take into consideration any concessions and inducement then being offered by landlords in the submarket area, as well as the quality of the buildings, the extent of Tenant's liability under the Lease, abatement provisions reflecting free rent and/or no rent during the period of construction or subsequent to the commencement date as to the space in question, brokerage commissions, length of the lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and other generally applicable conditions of tenancy. There shall be no minimum rent in the determination of Fair Market Rental Rate.
iii) If Landlord and Tenant exercising do not agree on the renewal option herein granted, Landlord shall submit in writing Fair Market Rental Rate within thirty (30) days of Tenant's delivery of notice of its intent to exercise an Option, then Landlord and Tenant shall submit the matter to arbitration as set forth below.
(a) Within fifteen (15) days after the Landlord and Tenant's failure to agree as set forth above, Landlord and Tenant shall each appoint an independent appraiser who shall by profession be a proposal real estate broker who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial property in the Las Vegas area. Landlord and Tenant shall each submit to the appraisers their respective Fair Market Rental Rate determinations (and back-up information regarding their determination), and the determination of the appraisers shall be limited solely to the issue of whether Landlord's or Tenant's submitted Fair Market Rental Rate for the then current Premises is the closest to the actual Fair Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termPremises, as determined by the appraisers. Tenant Such arbitrators may (or at the request of either party, shall) hold such hearings and require such briefs as the arbitrators, in their discretion, determine to be necessary.
(b) The arbitrators shall, within fifteen (15) days of their appointment, agree upon and appoint a third appraiser who shall have the same qualifications required of the initial two appraisers. If the two appraisers fail to agree on a third appraiser, both appraisers shall be dismissed and the matter shall be submitted to arbitration under the Judicial Arbitration and Mediation Service ("JAMS"), but based on the same procedures set forth herein, however, in the event that the Property association recorded covenants and restrictions requires such matter to be determined in another manner, then the parties agree to do so.
(c) The three appraisers shall reach a decision within thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiserthird appraiser and shall promptly notify Landlord and Tenant of such determination. The decision of the majority of the three appraisers shall be binding upon the parties.
(d) If a any party does not shall fail to appoint a qualified an appraiser within the time period set forth above, the other party shall provide written notice to the non-performing party regarding such failure, and in the event such non-performing party fails to appoint an appraiser within five (5) days after the other party has given notice Business Days of the name receipt of the appraisersuch notice, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and one of them shall bear oneappoint another appraiser under the requirements of this sub-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordsection iii.
Appears in 1 contract
Sources: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the initial Term of the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term period of five (5) years. In order years (such period may be referred to as the “Option Term”), as to the entire Premises as it may then exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such right: (i) Tenant must be in occupancy of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder.
(b) Tenant’s election (the “Election Notice”) to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than the date which is twelve months (27012) days prior to months before the expiration of Expiration Date and no later than the Lease Term date which is nine (i.e., by September 4, 20079) of its election to exercise months before the optionExpiration Date. If Tenant either fails or elects not to extend or fails to timely exercise its optionOption to Extend by not timely giving its Election Notice, time being of then the essence, the option Option to Extend shall automatically terminate be null and be of no further force and effect and this Lease void.
(c) The Option Term shall terminate upon commence immediately after the expiration of the initial TermTerm of the Lease. Upon receipt Tenant’s leasing of such notice from Tenant exercising the renewal option herein granted, Landlord Premises during the Option Term shall submit be upon and subject to the same terms and conditions contained in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of Lease except that (i) the Monthly Base Rent, plus payment of Tenant’s acceptance Share of Operating Expenses pursuant to the proposed Market Base Rental RateLease (in addition to all expenses paid directly by Tenant to the utility or service provider, or which direct payments shall continue to be Tenant’s obligation) shall be amended to equal the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) Tenant’s rejection the Security Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to equal one hundred percent (100%) of the Market highest monthly installment of Monthly Base Rental Rate and election Rent thereunder, but in no event shall the Security Deposit be decreased; (iii) Tenant shall accept the Premises in its “AS-IS” condition without any obligation of Landlord to initiate repaint, remodel, repair, improve or alter the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice Premises or to elect not provide Tenant any allowance therefor; and (iv) there shall be no further option or right to extend the term of the Lease as provided Lease. If Tenant timely and properly exercises the Option To Extend, references in the immediately preceding sentence, Tenant Lease to the Term shall be deemed to have elected to extend mean the Lease initial Term for as extended by the period specified in Tenant’s original notice Option Term unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the greater of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Monthly Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Rent payable by Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in under this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, Lease calculated at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the initial Term, plus payment of Tenant’s Share of Operating Expenses pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall continue to be Tenant’s obligation) (collectively, “Preceding Rent”) or (ii) the “Prevailing Market Rent”. As used in this Section Prevailing Market Rent shall mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term until equal to the appraisers have made their determinationOption Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the Premises; the type and quality of tenant improvements (including Tenant’s Improvements); age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall be determined without reduction or adjustment for “Tenant Concessions” (as defined below), if any, being offered to prospective new tenants of comparable space. For purposes of the preceding sentence, the term “Tenant Concessions” shall include, without limitation, so-called free rent, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market Base Rental Rate Rent based upon the foregoing criteria shall be made by Landlord, in questionthe good faith exercise of Landlord’s business judgment. Within thirty (30) days after Tenant’s exercise of the Option To Extend, when finally Landlord shall notify Tenant of Landlord’s determination of Option Term Rent for the Premises. If Landlord’s determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant’s sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant may elect to revoke and rescind the appraisersexercise of the option by giving written notice thereof to Landlord within thirty (30) days after notice of Landlord’s determination of Prevailing Market Rent.
(e) This Option to Extend is personal to Codexis Inc. and may not be used by, and shall not be retroactive transferable or assignable (voluntarily or involuntarily) to any person or entity except for a Tenant Affiliate.
(f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, with the effect of canceling and voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant’s failure to timely exercise the Option to Extend in accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of any default on the part of Tenant under the Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default.
(iii) Tenant’s third default under the Lease prior to the commencement of the extension termOption Term, notwithstanding that all such defaults may subsequently be cured. In the event of Landlord’s termination of the Option to Extend pursuant to this Section, Tenant shall reimburse Landlord for all costs and expenses Landlord incurs in connection with Tenant’s exercise of the Option to Extend including, without limitation, costs and expenses with respect to any brokerage commissions and attorneys’ fees, and with respect to the first Base Rent design, construction or making of any tenant improvements, repairs or renovation or with respect to any payment becoming due after the determination of all or part of any allowance for any of the applicable Market Base Rental Rate foregoing.
(g) Without limiting the generality of any provision of the Lease, time shall include be of the retroactive amounts essence with respect to all of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice provisions of default which default is not cured within any applicable cure periods or waived by Landlordthis Section.
Appears in 1 contract
Sources: Lease Agreement (Maxygen Inc)
Option to Extend. Provided Tenant is in possession of the Premises and is not in default of any term, covenant or condition of this Lease, Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term option to renew the Term of this Lease for five (5) yearsyears to commence immediately upon the expiration of the initial Term or renewal term, upon the same terms, covenants and conditions as contained in this Lease, except that (i) the annual base Rent during said Renewal Term shall be the then prevailing market rate, plus all sales, use, excise and other taxes now or hereinafter enforced by any lawful authority on all amounts due. In order to exercise such optionthe option granted herein, Tenant shall notify Landlord Landlord, in writing at least two hundred seventy writing, not less than ninety (27090) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term, that it is considering exercising its option to renew the Term. Upon On receipt of such notice from Tenant exercising the renewal option herein grantednotice, Landlord shall submit will, in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annumwriting, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant receipt of the Market Base Rental Ratenotice from Tenant, objects quote to Tenant what the Market Base Rental Rate determined by Landlord and elects to submit new annual base Rent will be for the rate determination to appraisalensuing Renewal Term. Tenant shall then notify Landlord, thenin writing, within seven not later than fifteen (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (2015) days after notice received of such annual base rents, as to whether or not it will exercise the date option herein granted, and, if no such notice of exercise is received, the option shall be deemed waived. In the event Tenant exercises the option, Landlord and Tenant shall execute a modification to this Lease acknowledging such renewal and setting forth the new annual base Rent. The option shall be void if, at the time of exercise of such option, Tenant is not in possession of the appointment Premises or is in default under this Lease or if Tenant fails to deliver the requisite notice thereof within the time period specified above. The option granted herein shall not be severed from this Lease, separately sold, assigned or transferred. BUILDING RULES AND REGULATIONS The following Building Rules and Regulations have been adopted by Landlord for the care, protection and benefit of the last appraiserPremises and the Building and for the general comfort and welfare of all tenants.
1. If a party does The sidewalks, entrances, passages, halls, elevators and stairways shall not appoint a qualified appraiser within five (be obstructed by Tenant or used by Tenant for any purpose other than for ingress and egress to and from the Building and Tenant's Premises.
2. Restroom facilities, water fountains, and other water apparatus shall not be used for any purpose other than those for which they were constructed.
3. Landlord reserves the right to designate the time when freight, furniture, goods, merchandise and other articles may be brought into, moved or taken from Tenant's Premises or the Building.
4. Tenant shall not put additional locks or latches upon any door without the prior written discretionary consent of Landlord. Any and all locks so added on any door shall remain for the benefit of Landlord, and the keys to such locks shall be delivered to Landlord by and from Tenant.
5. Landlord shall not be liable for injuries, damage, theft, or other loss, to persons or property that may occur upon, or near any parking areas that may be provided by Landlord. Tenant, its agents, employees, and invitees are to use same at their own risk, Landlord to provide no security with respect thereto. The driveways, entrances, and exits upon, into and from such parking areas shall not be obstructed by Tenant, Tenant's employees, agents, guests, or invitees. Tenant, its employees, agents, guests and/or invitees shall not park in space(s) days after that are identified as reserved for others.
6. Tenant shall not install in the other party has given notice Premises any heavy equipment or fixtures or permit any concentration of excessive weight in any portion thereof without first having obtained Landlord's written consent.
7. Landlord reserves the right at all times to exclude newsboys, loiterers, vendors, solicitors, and peddlers from the Building and to require registration or satisfactory identification or credentials from all persons seeking access to any part of the name Building outside ordinary business hours. Landlord will exercise its best judgment in the execution of such control but will not be liable for the granting or refusal of such access.
8. Landlord reserves the right at all times to exclude the general public from the Building upon such days and at such hours as in Landlord's sole judgment will be in the best interest of the appraiser, then the single appraiser Building and its tenants.
9. No wires of any kind or type (including but not limited to T.V. and radio antennas) shall be attached to the sole appraiser outside of the building and no wires shall set be run or installed in any part of the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental RateBuilding without Landlord's prior written consent.
10. If the appraisers Premises are unable to agree on the third appraiserfurnished with carpeting, either of the parties to this LeaseTenant shall provide a plexiglass or comparable carpet protection mat for each desk chair customarily used by Tenant. For default or carelessness in these respects, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties Tenant shall pay for the appraiser appointed by it and shall bear one-half of Landlord the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiserrepairing or replacing said carpet, however selectedin whole or in part, as Additional Rent when, in Landlord's sole judgment, shall be repair or replacement is necessary.
11. Landlord shall furnish a person who has not previously acted in any capacity for either party. The appraisers reasonable number of door keys to Tenant's premises and/or the Building which shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection surrendered on termination or expiration of the third appraiser, Lease. Landlord reserves the third appraiser shall determine right to require a deposit for such keys to insure their return at the Market Base Rental Rate and all three termination or expiration of the appraiser’s Market Base Rental Rates Lease. Tenant shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate get keys only from Landlord and the remaining appraisals shall then be averagednot obtain duplicate keys from an outside source. If the Market Base Rental Rate is not established for the extended term prior to its commencementFurther, Tenant shall continue not alter the locks or effect any substitution of such locks as are presently being used by Tenant's Premises or the Building.
12. Tenant shall keep all doors to pay Premises closed at all times except for ingress and egress to the applicable Base Rent required for Premises.
13. All installations in the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, Common Telephone/Electrical Equipment Rooms shall be retroactive limited to the commencement terminal boards and connections. All other electrical equipment must be installed within Tenant's Premises.
14. It is expressly understood and agreed that any items of the extension termany nature whatsoever placed in Common Areas (i.e., hallways, restrooms, elevators, parking garage, storage areas and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued equipment rooms) are placed at Tenant's sole risk and unpaid. In Landlord assumes no event may either Landlord responsibility whatsoever for any loss or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddamage as regards same.
Appears in 1 contract
Sources: Sublease (Brite Voice Systems Inc)
Option to Extend. (a) Tenant shall have an and is hereby granted the option to extend and renew the Lease as to all of the Premises Term hereof for two (but not as to any portion or portions thereof) for one (12) additional term period(s) of five (5) years. In order years each (the “Extension Period(s)’’), provided (i) Tenant gives written notice to Landlord of Tenant’s election to exercise such optionextension option no earlier than thirty (30), Tenant shall notify Landlord in writing at least two hundred seventy and no later than twenty (270) days 20), months prior to the expiration of the last Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being Year of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Term or of the initial Term. Upon receipt of such notice from Tenant exercising then-current Extension Period, as the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or case may be; (ii) Tenant’s rejection no uncured Event of Default exists at the Market Base Rental Rate and time of such election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any commencement of such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, Extension Period; and (iii) Tenant and its Affiliates shall pay Tenant’s Prorata Share be in occupancy for its own use of Operating Expenses throughout not less than sixty-five percent (65%) of the renewal termPremises.
(b) All terms and conditions of this Lease, including without limitation all provisions governing the payment of Additional Rent, shall remain in full force and effect during each Extension Period, except that Base Rent payable during the first Lease Year of each Extension Period shall be the then-current Fair Market Rental Rate (hereinafter defined) with respect to comparable office space in downtown Washington, D.C. at the time of the commencement of the applicable Extension Period. Landlord shall not be obligated to make any improvements or alterations in or to the Premises. There shall be no rental abatement during either Extension Period, except to the extent the same is taken into account in determining the Fair Market Rental Rate and as otherwise expressly provided in this Lease. As used herein, and subject to the limitations set forth in this paragraphLease, the term “Fair Market Base Rental Rate” shall mean as of any date the then annual net fair market rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which that would be agreed upon between a willing landlord under no compulsion would agree and a tenant entering into the renewal of a lease for comparable space as to accept as of such datelocation, configuration, view and which a willing tenant under no compulsion would agree to accept as of such dateelevator exposure, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location size and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if anyfor in a comparable building as to location, quality, age reputation and location of age, with a comparable build-out, a comparable term and operating expense and real estate tax pass-throughs assuming the applicable building, rental concessions, following: (1) the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes landlord and utilities, relative services provided, tenant are informed and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord well-advised and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience is acting in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two what it considers its own best interests; (2) appraisers are a tenant improvement allowance, free rent periods or any other special concessions (for example, design fees, moving allowances, refurbishing allowances, etc.) will not be provided to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice Tenant except to the other party, may apply to extent that such allowances or concessions are reflected in the then president of fair market rental rates being obtained (in which event the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Fair Market Base Rental Rate shall be subject to reduced by the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each economic equivalent of the parties shall pay for allowances or concessions not offered to Tenant); and (3) the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall will continue to pay Tenant’s Proportionate Share Office and Tenant’s Proportionate Share Building, respectively of Operating Expenses. The determination of Fair Market Rental Rate shall also include the applicable annual increases in Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and after the first Base Rent payment becoming due after the determination Lease Year of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordExtension Period.
Appears in 1 contract
Sources: Office Lease (Carlyle Group L.P.)
Option to Extend. Tenant shall have an option to extend and renew the Lease as to all (a) Borrower may request successive one-year extensions of the Premises Maturity Date by delivering a written request (a “Request to Extend”) therefor to the Administrative Agent not more than ninety (90) days but not as to any portion or portions thereof) for one less than thirty (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (27030) days prior to the expiration date which is one (1) year prior to the then scheduled Maturity Date (such then scheduled Maturity Date before giving effect to the requested extension which is the subject of such Request to Extend being referred to herein as the “Then Scheduled Maturity Date” and such date which is one (1) year prior to such Then Scheduled Maturity Date being referred to herein as the “Extension Date”). The Administrative Agent shall notify the Lenders of the Lease Term receipt of such request, and each Lender shall give notice in writing to the Administrative Agent not later than ten (i.e., by September 4, 200710) days after receipt of such notification from Administrative Agent of such Lender’s acceptance or rejection of such request. Each Lender that determines not to so extend its Maturity Date is herein referred to as a “Non Extending Lender” and any Lender that does not timely advise the Administrative Agent of its election decision to extend or not to extend shall be also be deemed to have agreed to extend its Maturity Date (an “Extending Lender”). The Administrative Agent shall notify the Borrower of each Lender’s determination under this Section no later than the Extension Date (or, if such date is not a Business Day, on the next preceding Business Day).
(b) If (and only if) W▇▇▇▇ Fargo, N.A. shall have elected to be an Extending Lender, then, effective as of the Extension Date, the Maturity Date of each Extending Lender shall be extended to the date falling one year after the Then Scheduled Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day). The Maturity Date of each Non Extending Lender shall remain the Then Scheduled Maturity Date.
(c) Any extension of the Maturity Date shall be subject to each of the following conditions precedent on the applicable Extension Date:
(i) As of the date of Borrower’s delivery of the Request to Extend, and as of the Extension Date, no Default shall have occurred and be continuing, and no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall have occurred and be continuing, and Borrower shall so certify in writing; and
(ii) Borrower shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the option. If Tenant elects not option to extend or fails extend; and
(iii) There shall have occurred no Material Adverse Effect, as determined by Administrative Agent in its sole discretion, since the Effective Date; and
(iv) On the Extension Date, Borrower shall pay to timely exercise its option, time being Administrative Agent for the ratable benefit of the essence, Lenders an extension fee in the option shall automatically terminate and be amount of no further force and effect and this Lease shall terminate upon the expiration fifteen one-hundredths of one percent (0.15 %) of the initial Termtotal commitment amount of the Loan (whether disbursed or undisbursed), as determined on the Extension Date; and
(v) At the sole option of Administrative Agent, an Appraisal confirming to the satisfaction of the Administrative Agent that the Credit Limit (whether disbursed or not and as reduced by the Commitments of any Non-Extending Lenders) as a percentage of the as-is value of the Property does not exceed fifty-five percent (55%) (“Loan-to-Value Percentage”), based on an as-is appraisal value of the Commercial Property and the as-is value (as such term is used in the Initial Mauka Apprasial) of Kapalua Mauka (or the portion thereof which remains Collateral); provided, however, in the event such appraised value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall pay down the outstanding principal balance of the Loan (to the extent necessary) and the Credit Limit shall be permanently reduced such that said Loan to-Value Percentage may be met. Upon receipt The valuation date of such notice from Tenant exercising the renewal option herein granted, Landlord appraisal shall submit in writing be within thirty (30) days a proposal of the Extension Date; and.
(vi) Except as modified by the option to extend described herein, the terms and conditions of this Agreement and the other Loan Documents as modified and approved by the Administrative Agent and the Lenders shall remain unmodified and in full force and effect.
(d) On the Maturity Date of each Non-Extending Lender, the Borrower shall repay for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance account of the proposed Market Base Rental RateNon Extending Lenders aggregate Advances, or (ii) Tenant’s rejection accrued but unpaid interest thereon, and any related Fixed Rate Priced Adjustment to the extent necessary to reduce the amount of outstanding Advances to an amount which, when added to the then applicable Interest Holdback, equals the aggregate remaining Commitments of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentenceExtending Lenders, Tenant which aggregate remaining Commitments shall be deemed thereafter to have elected to extend be the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions Credit Limit and covenants of this Lease except as to (i) the amount of Base Rentthe Loan. Administrative Agent shall prepare a replacement Schedule 1.1, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, showing the modified Commitments and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location Pro Rata Shares of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthExtending Lenders. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant The Commitments of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to Non Extending Lenders will thereafter be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddeemed cancelled.
Appears in 1 contract
Option to Extend. 11.1 Tenant shall have an option the right, exercisable no more than three (3) times and provided Tenant is not then in default, beyond any applicable notice, grace or cure period, to extend and renew the Lease as to all Extended Term Termination Dates set forth in Exhibit A hereof for a period of the Premises (but not as to any portion or portions thereof) for one (1) additional year on the same terms and conditions contained herein except that the rent for any portion of the Premises during such further extended term of shall be adjusted to 28 further extension or (b) ninety-five (595%) yearspercent of the then Fair Market Rent, as determined below. In Tenant must provide at least nine (9) months advanced written notice to Landlord in order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the extend any Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process termination date as set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal Exhibit A. Upon exercising any extension option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants Extended Term Termination Dates as set forth in Exhibit A will be deemed automatically extended for an additional one year period at rental amounts equal to ninety-five (95%) percent of this Lease except as to (i) the amount of Base then Fair Market Rent, which . Fair Market Rent shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, follows. Landlord and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date agree on the then annual net rental rate prevailing Fair Market Rent within fifteen (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (715) days of the date Landlord's receipt of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date 's notice of the appointment of the last appraiserextension. If a party does not appoint a qualified appraiser the parties are unable to reach agreement on the then prevailing Fair Market Rent by such date then Tenant shall have the right to rescind its notice of extension by delivering to Landlord within five (5) business days after the other party has given thereafter written notice of recission of Tenant's exercise of its option to extend. In the name event Landlord and Tenant cannot agree upon the then prevailing Fair Market Rent, and Tenant has not so rescinded its notice of extension, the appraiser, then the single appraiser following procedure shall be followed. Each will select an appraiser with five or more years experience in the sole appraiser and shall set Natick rental market who will jointly determine the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Ratemarket rent. If the appraisers are unable to so selected cannot agree on upon the third appraiser, either of the parties to this Lease, after giving market rent within forty-five (545) days’ prior written notice to , of their selection, the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of appraisers so named shall select a third appraiser who meets and the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject decision as to the limitations on Market Base Rental Rate set forth in the first paragraph market rent of this Section. Each any two of the parties appraisers so selected shall pay for bind the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordparties.
Appears in 1 contract
Sources: Sublease Agreement (Connected Corp)
Option to Extend. Tenant shall have an option the option, to be exercised as hereinafter set forth, to extend the term of this Lease for an additional five (5) year period, to follow consecutively after the original term of this Lease (hereinafter referred to as the "Extended Term"), upon the condition that, on the last date on which Tenant is entitled to exercise such option and renew on the Lease as to all last day of the Premises (but term of this Lease, this Lease is in full force and effect and Tenant is not as in default hereunder. Tenant shall exercise its option by giving written notice of its election to any portion or portions thereof) for extend the term of this Lease to Landlord not less than one (1) additional year prior to the expiration of the term of this Lease but in no event earlier than two (2) years prior to the expiration of the term of this Lease. Upon such exercise, the term of this Lease shall be automatically extended for the Extended Term without the requirement of any further instrument, upon all of the same terms, provisions and conditions set forth in this Lease, except that the net rent payable during the Extended Term of this Lease shall be equal to the greater of (i) the rent calculated and determined by applying the rent adjustments and increases set forth in Section 2.01 of this Lease as if the Lease Years of the Extended Term were part of the initial term (e.g., the rent for the first Lease Year of the Extended Term shall be the greater of 1.03 times the rent for the last year of the original term and the Annual Rent CPI adjustment applied to such last year of the original term); and (ii) the then market rate per square foot for the Premises (the "Market Rate"), which Market Rate shall be adjusted and increased during each Lease Year of the Extended Term by applying the rent adjustments and increases provided for in Section 2.01 of this Lease. As used in this Lease, Market Rate shall be determined by Landlord. Landlord shall, no later than nine (9) months prior to the expiration of the original term of this Lease, advise Tenant of its determination of Market Rate for the first Lease Year of the Extended Term if it determines that same is greater than the rent would be applying the adjustments and increases thereto as set forth in Section 2.01 of this Lease and (i) above. If Landlord does not advise Tenant of the Market Rent, then rent during the Extended Term shall be determined and calculated under (i) hereinabove. If Tenant disagrees with Landlord's determination of Market Rate, Tenant shall so notify Landlord in writing no later than fifteen (15) days following receipt of Landlord's advice of Market Rate. If Landlord and Tenant cannot agree on the Market Rate as above described within thirty (30) days after Tenant's notice of disagreement, then each party shall, within fifteen (15) days following the 30-day workout period, select an independent MAI appraiser, each having at least five (5) yearsyears of experience in the appraisal of commercial real estate in Dade County, Florida, with reasonable experience in the appraisal of warehouse buildings in the City of Miami, Florida, to make a determination of the Market Rate. In order to exercise such option, Both MAl appraisers chosen by Landlord and Tenant shall notify then agree upon a third MAl appraiser, and each of the three appraisers shall submit their appraisals to Landlord in writing at least two hundred seventy and Tenant no later than thirty (27030) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the original term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the this Lease. The Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either average of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable three appraisals, provided, however, if the difference in Market Base Rental Rate of any appraisal is less than five (5%) percent of the average of the other two appraisals, then the Market Rate shall include be the retroactive amounts average of monthly Base the two closest appraisals. Each party shall pay the fees and costs of the appraiser it has selected and both parties shall split the fees and costs of the third appraiser equally. Notwithstanding anything contained in this Section 22.01 to the contrary, in no event shall the Market Rate be less than Annual Rent installments accrued would be if calculated and unpaiddetermined under (i) hereinabove. During the Extended Term, the Market Rate (if applicable) shall be increased each year, on the anniversary date, by multiplying the rent for the immediately preceding Lease Year by 1.03 or by the application of the Section 2.01 CPI adjustment to the immediately preceding Lease Year, whichever results in the greater rent. In no the event may either Landlord or Tenant elect not to extend that the Lease based upon the Market Base Rental Rate established in accordance herewith. This aforesaid option to extend may is duly exercised, all references contained in this Lease to the term of this Lease, whether by number of years or number of months, shall be construed to refer to the original term of this Lease, as extended as aforesaid, whether or not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default specific reference thereto is not cured within any applicable cure periods or waived by Landlordmade in this Lease.
Appears in 1 contract
Sources: Lease Agreement (Revenge Marine Inc)
Option to Extend. (a) Subject to and upon the terms and conditions set forth below, Tenant shall will have an one option to extend and renew the term of this Lease as for one additional successive period of five years (the "Renewal Term").
(b) Tenant's option to all extend the Term must be exercised by written notice given to Landlord (the "Renewal Notice") no less than 365 days prior to the end of the Premises Initial Term.
(but c) Tenant shall not be permitted to extend the Term of this Lease if there exists any uncured Event of Default by Tenant as to any portion or portions thereofof the date of the Renewal Notice.
(d) The Renewal Term will be on the same terms and conditions as this Lease except for one (1) additional term the amount of five (5) yearsmonthly Base Rent. In order to exercise such optionDuring the Renewal Term, Tenant shall notify pay as monthly Base Rent an amount equal to the greater of (a) the Base Rent and Additional Rent payable by Tenant immediately prior to the commencement of the Renewal Term or (b) Market Rent for the Premises for the Renewal Term. Market Rent during the Renewal Term shall be equal to rents typically payable for the five year Renewal Term for comparable space by tenants of buildings of comparable quality in the vicinity of the Premises, taking into account the base year for the Renewal Term as described in Section 4.3(f) below. Landlord in writing and Tenant agree that once Tenant has timely delivered its Renewal Notice, both parties will be responsible for their respective rights and obligations under this Lease for the Renewal Term, regardless of the outcome of the Base Rent determination. The word "Term" shall be used throughout this Lease to include both the Initial Term and the Renewal Term, if applicable.
(e) The Market Rent for the Renewal Term will be determined as follows:
(i) If Tenant properly exercises its option to extend the Term for the Renewal Term, Landlord and Tenant shall attempt to agree as to the Market Rent at least two hundred seventy (270) 270 days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.the
Appears in 1 contract
Option to Extend. Tenant shall have an option to extend and renew the So long as this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord is in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further full force and effect and Tenant is not in default and has not at any time been in default under this Lease shall terminate upon beyond any applicable notice and cure period and no condition exists which with the expiration passage of time or giving of notice would constitute a default under this Lease and provided this Lease has not been assigned (except in the case of a Permitted Transfer) and no portion of the initial Premises has been sublet (except in the case of a Permitted Transfer and except in the case of a sublease that has expired or will expire prior to the Option Term Commencement Date), (i) Tenant may extend the Term of this Lease for the period of the Option Term by giving notice to Landlord (“Tenant’s Option Exercise Notice”) on or before the Option Notice Date. The terms and conditions applicable to such Option Term shall be the same as set forth in this Lease except that Tenant shall have no further right to extend the Term of this Lease and the Annual Base Rent payable by Tenant with respect to the Option Term shall be the Option Annual Base Rent, but in no event less than the Annual Base Rent immediately prior to the start of the Option Term. Upon receipt Following the timely delivery of such notice from Tenant exercising the renewal option herein grantedTenant’s Option Exercise Notice, Landlord shall submit in writing provide Tenant with notice of Landlord’s determination of the Option Annual Base Rent (“Landlord’s Determination”). Unless Tenant provides a notice of objection (the “Objection”) to Landlord within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market delivery of Landlord’s Determination, Landlord’s Determination shall be the Option Annual Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth belowRent. If Tenant fails does timely provide the Objection, and if Landlord and Tenant have not agreed to timely accept or reject the Market Option Annual Base Rental Rate specified Rent in Landlord’s notice or to elect not to extend writing within one (l) month following the term delivery of the Lease as provided in Objection, the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Option Annual Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which Rent shall be determined as set forth hereinby appraisers, (ii) options one to extend or be chosen by Landlord, one to expand, which shall not be applicablechosen by Tenant, and (iii) Tenant a third to be selected by the two first chosen. All appraisers chosen or selected hereunder shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location be independent of the applicable buildingparties, rental concessionsshall have received the M.A.I. (Member, Appraisal Institute) designation from the time the particular rate under consideration became effective, size American Institute of tenant, credit of tenant, relative operating expenses, taxes Real Estate Appraisers and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has have had at least five (5) years’ full-time commercial appraisal years of experience in Boulder County appraising commercial office and research and development space comparable to determine the Market Base Rental RatePremises and in the Greater Boston and Waltham/Route 128 areas. The unanimous written decision of the two first chosen, such process to without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be completed conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its appraiser within twenty thirty (2030) days after the date following expiration of the appointment of the last appraiser. If aforesaid one (l) month objection period and, unless such two appraisers shall have reached a party does not appoint a qualified appraiser unanimous decision within seventy-five (575) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointedfrom said expiration, they shall within a further fifteen (15) days elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser notify Landlord and of paying the third appraiser’s feeTenant thereof. The third appraiser, however selected, appraiser shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed deliver to consider Landlord and Tenant the criteria above stated in determining written decision of the Market Base Rental Rate. Within twenty (20) majority of them within 30 days after of the selection of the third appraiser, . Landlord and Tenant shall each bear the expense of the appraiser chosen by it and shall equally bear the expense of the third appraiser (if any). If, as contemplated by this Section, the Option Annual Base Rent shall determine not have been determined before the Market Option Term Commencement Date, the Option Term may commence and from and after the Option Term Commencement Date, until the Option Annual Base Rental Rate and all three Rent is so determined either by agreement of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher parties or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementby appraisal, Tenant shall continue to pay the applicable make payments towards such Option Annual Base Rent required for at the last full month rate as set forth in Landlord’s Determination, subject to retroactive adjustment in conformity with and payment of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement any additional amount within fifteen (15) days of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Option Annual Base Rent installments accrued and unpaidpursuant to this Section. In no event may either Landlord or shall the provisions of this Section be deemed to authorize an Option Annual Base Rent less than the Annual Base Rent immediately prior to the start of the Option Term. If Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This exercises its option to extend may not be exercised this Lease, the phrase Annual Base Rent as used in this Lease shall mean the Option Annual Base Rent during the Option Term and the word Term as used in this Lease shall not be extended if Landlord has given Tenant notice mean the combined terms of default which default is not cured within any applicable cure periods or waived by Landlordthe Term and the Option Term.
Appears in 1 contract
Sources: Building Lease (D8 Holdings Corp.)
Option to Extend. Tenant shall have an A. Lessor hereby grants to Lessee the option to extend the term of this Lease for a Five 5) year period commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Lessee gives to any portion or portions thereof) Lessor and Lessor receives written notice of the exercise of the option to extend this Lease for one (1) said additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days no earlier than nine months and no later than six months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or expire;
(ii) Tenant’s rejection The provisions of paragraph 39, including the provision relating to default of Lessee set forth in paragraph 39.4 of this Lease are conditions of this Option;
(iii) All of the Market Base Rental Rate terms and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to where specifically modified by this option shall apply;
(iiv) On January 1, 2007, the amount monthly rent payable under paragraph 1.5 and 4 of Base Rent, which the attached Lease shall be determined as set forth hereinadjusted by the increase, (ii) options to extend or to expandif any, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout from the renewal term. date this Lease commenced in the C.P.I. As used herein, and subject the term "C.P.I. shall mean the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban Consumers, Los Angeles-Anaheim-Riverside, California (1982/84=100), "All Items", herein referred to as "C.P.I."
a. The monthly rent payable in accordance with paragraph A(iv) of this Addendum shall be calculated as follows: the limitations rent payable for the first month of the term of this Lease, as set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location paragraph 4 of the applicable buildingattached Lease, rental concessions, shall be multiplied by a fraction the time numerator of which shall be the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant C.P.I. of the Market Base Rental Rate, objects to calendar month immediately preceding the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the effective date of the appointment subject rent escalation, and the denominator of which shall be the C.P.I. for the calendar month in which the original Lease term commenced. The sum so calculated shall constitute the new monthly rent hereunder, but, in no event, shall such new monthly rent be less than 103% of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after rent payable for the other party has given notice month immediately preceding the date for rent adjustment.
b. In the event the compilation and/or publication of the name of the appraiserC.P.I. shall be discontinued, then the single appraiser index most nearly the same as the C.P.I. shall be used to make such calculation. In the sole appraiser event that Lessor and Lessee cannot agree on such alternative index, then the matter shall set be submitted for decision to the Market Base Rental RateAmerican Arbitration Association in accordance with the rules of said association and the decision of the arbitrators shall be binding upon the parties. The appraisers appointed by the parties cost of said Arbitrators shall meet promptly be paid equally be Lessor and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days Lessee.
c. Lessor shall notify Lessee of any rental increases purs▇▇▇▇ ▇▇ ▇his paragraph as soon as practicable after the date the second appraiser has relevant C.P.I. figures have been appointedreleased. Until such notification, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant Lessee shall continue to pay the applicable Base Rent required rent in effect during the prior rental period. After notification of a rental increase, Lessee shall commence making rental payments in the increased amount and shall, within ten (10) days after such notification, pay to Lessor the amount of any rental increases due for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This previous months.
B. If this option to extend may not is exercised, the option term shall commence on January. 1, 2007 and shall end on December 31, 2011
C. On January 1 2008 January 1 2009, January 1, 2010 and again on January 1, 2011 , the monthly rent payable shall be exercised and adjusted upward by 3% over the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordrent payable for the month immediately preceding each rental adjustment.
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease (International Remote Imaging Systems Inc /De/)
Option to Extend. Tenant shall have an option to extend and renew the Lease as to all A. Provided that Lessee is in possession of the Premises (but and is not as to any portion or portions thereof) for one (1) additional term in default under the terms, covenants and conditions of five (5) years. In order to exercise such optionthis Lease, Tenant Lessee shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, have the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentencefrom March 1, Tenant 2005 through February 28, 2010. The exercise of this option shall be deemed in writing and delivered to have elected Lessor no earlier than twelve (12) months and no later than six (6) months prior to extend the time the option period would commence if the option were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, this option shall automatically expire.
B. If this option is exercised, all provisions of the Lease Term for shall continue; provided, however, that the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension monthly rent payable commencing March 1, 2005, shall be upon all of the terms, conditions at a fair market value rental and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth hereinfollows, (ii) options to extend or to expand, which but shall not be applicableless than the rent due February 1, and (iii) Tenant 2005;
C. ▇▇▇▇▇▇ ▇▇▇ Lessee shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within have twenty (20) days after the date of the appointment Lessee's notice to Lessor of its exercise of the last appraiseroption to extend in which to agree on the monthly rent to be payable for the period March 1, 2005 through February 28, 2010. If Lessor and Lessee agree on the monthly rent for said period, they shall immediately execute an amendment to this Lease stating the monthly rent payable for such period, and such amendment shall be attached to this Lease and become a part hereof. If the Lessor and Lessee are unable to agree on the monthly rent for such period within said twenty (20) days, then within ten (10) days after the expiration of such twenty (20) day period, Lessor and Lessee, at their costs and by giving notice to the other party shall each appoint a real estate appraiser/broker with at least five (5) years full-time appraisal experience in the Warner Center area of Woodland Hills to appraise and set the monthly rent for the period from March 1, 2005 through February 28, 2010. If either party does not appoint a qualified an appraiser within five ten (510) days after the other party has given notice of the name of the its appraiser, then the single appraiser appointed shall be the sole appraiser and shall set the Market Base Rental Ratemonthly rent for such term. The If the two appraisers are appointed by the parties as aforesaid, they shall meet promptly and attempt to set the Market Base Rental Ratemonthly rent for the stated period. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date appointment of the second appraiser has been appointedappraiser, they shall the two appraisers shall, within five (5) days after the last day provided for the two appraisers to set the monthly rent, elect a third appraiser meeting the qualifications stated in this paragraph within seven aforesaid qualifications. Within ten (710) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection appointment of the third appraiser, the third appraiser shall determine set the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established monthly rent for the extended term prior to its commencementperiod from March 1, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question2005 through February 28, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord2010.
Appears in 1 contract
Sources: Standard Industrial Lease (Dental Medical Diagnostic Systems Inc)
Option to Extend. Addendum No. 1 to Lease between C▇▇▇▇▇▇ VENTURES, LLC, a California limited liability company, as Landlord, as Landlord, and ONCOCYTE CORPORATION, a California corporation, as Tenant: Provided that Tenant is not in default that is continuing beyond any notice and cure period at the time Tenant exercises its option to extend the Term, Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term option to extend the Term of this Lease for a period of five (5) yearsyears (“Extended Term”). In order During the Extended Term, all other terms and conditions contained in this Lease shall remain the same including but not limited to the annual Rent Adjustment, except that upon the commencement of the Extended Term, the Base Rent payable as of the commencement of the Extended Term shall be increased to the Prevailing Market Rate (as defined below). Tenant must exercise such optionsaid option by giving written notice to Landlord of its exercise (“Option Notice”), Tenant shall notify Landlord in writing thereof at least two hundred seventy nine (2709) days months but not more than twelve (12) months (other than as set forth in Section 16(b) in the event of a casualty) prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its optionLease, time being of the essence. It is an express condition of the foregoing option to extend that at any time during the Lease, if Tenant shall have been in default beyond the option shall automatically terminate applicable notice and be cure period of no further force and effect and any material provisions of this Lease on three (3) or more occasions, then Tenant’s option(s) to extend the Term of the Lease shall terminate upon be null, void and totally ineffective without further notice thereof by Landlord and in such case the expiration Extended Term shall not commence and the Lease shall expire at the end of the Term in effect at that time prior to such Extended Term. The Base Rent commencing on the first day of the Extended Term shall be adjusted to the greater of (i) the Base Rent in effect at the end of the initial TermTerm or (ii) the Prevailing Market Rate (as hereafter defined). Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing response to and within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the of Landlord’s receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental RateOption Notice, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If give Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s written notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Prevailing Market Base Rental Rate, objects to the Market Base Rental Rate as reasonably determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived good faith by Landlord.
Appears in 1 contract
Option to Extend. Tenant shall have an option Lessor hereby grants to Lessee two successive options to extend and renew the this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term terms of five (5) yearsyears each commencing on the first day after the Expiration Date of the previous term. In order Lessee must exercise the option to extend, if at all, by giving Lessor written notice of such exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy not less than seven (2707) days months prior to the expiration date of the Lease Term (i.e., by September 4, 2007) of its election to then current term. Upon the exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essenceoption to extend, the option shall automatically terminate and be term of no further force and effect and this Lease shall terminate upon be extended through the expiration date of the initial Renewal Term on the same terms and conditions as contained herein, except that there shall be no option to extend the term of this Lease beyond the Second Renewal Term, and the Base Monthly Rent during the Renewal Terms shall be determined pursuant to this Section. Upon receipt Base Monthly Rent for each Renewal Term shall be the greater of such notice from Tenant exercising (a) the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal Base Monthly Rent scheduled for the then current Market Base Rental Rate final month of the preceding term (per rentable square foot per annumthe initial term or the First Renewal Term, “NNN”as the case may be), or (b) the fair market base rental value of the Premises. Lessor and Lessee agree to be reasonable in their negotiation of rent for the renewal termoption periods. Tenant Lessor and Lessee shall have thirty (30) days from after Lessee provides Lessor of its notice to exercise its Option to Renew to set the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of rent for the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth belowoption period(s). If Tenant fails Lessor and Lessee are unable to timely accept or reject establish the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term rent for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (iperiod(s) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord day period then Lessor and elects to submit the rate determination to appraisal, then, within seven Lessee shall each appoint an appraiser with not less than ten (710) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal years experience in Boulder County real estate appraisal in the Bellevue real estate market, to determine set the Market Base Rental Rate, such process to be completed within twenty (20) days after rent for the date of the appointment of the last appraiseroption period(s). If a party does not appoint a qualified the rents proposed by each appraiser are within five ten (510%) days after the other party has given notice percent of the name of the appraisereach other, then the single appraiser rent for the option period(s) shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day average of the two (2) appraisers are to set the Market Base Rental Raterents. If the rents proposed by each appraiser are greater than ten (10%) percent from each other then the two appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of will select a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three also have at least (310) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth years real estate appraisal experience in the first paragraph of this Section. Each of Bellevue real estate market, to set the parties shall pay rent for the appraiser appointed option period(s). The rent established by it and shall bear one-half of the cost of appointing the third appraiser will be binding on Lessor and of paying Lessee and will be no less than the third appraiser’s feerent proposed by Lessee and no higher than the rent proposed by Lessor. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection total cost of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall 's fees will be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month responsibility of the Lease term until party whose proposed rental rate is farthest from that of the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined final rental rate established by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Sources: Industrial Lease (Icos Corp / De)
Option to Extend. Tenant Lessee shall have an the option to extend the term of this Lease ("Option") on ALL OF the terms, conditions, covenants and renew provisions, contained in this Lease, except for the Lease as to all of the Premises Monthly Rent, for two (but not as to any portion or portions thereof) for one (12) additional term terms of five (5) yearsyears following the Termination Date. In order Each Option Term shall commence on the day immediately following the Termination Date. Lessee may exercise each Option by giving written notice of exercise of the Option to exercise such option, Tenant shall notify Landlord in writing Lessor at least two one hundred seventy twenty (270120) days prior to before the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the optionTermination Date. If Tenant elects not to extend or fails to timely exercise its option, time being Lessee is in default on the date of giving the essenceOption Notice, the option Option Notice shall be totally ineffective. If the Option Notice is not given, the Option shall automatically terminate expire and be of no further force and effect and or effect. The Option granted to Lessee in this Lease shall terminate upon is personal to the expiration of original Lessee and may be exercised only by the initial Termoriginal Lessee while physically occupying the Premises. Upon receipt of such notice from Tenant exercising the renewal option herein grantedThe Option may not be exercised or assigned, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annumvoluntarily or involuntarily, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice by or to elect not any person or entity other than Lessee. Any consent by Lessor to extend the term an assignment of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise or a sublet of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the termsPremises, conditions and covenants of this Lease except as to (i) the amount of Base Rentor any portion thereof, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicableconstrued as a waiver of this prohibition. Monthly Rent during each Option period shall be at Fair Market Value, as determined by Lessor, at the time Lessor receives the Option Notice. In the event the Lessor and Lessee cannot agree on the new base rent, the matter shall be submitted for decision to a panel of three arbitrators. Lessor and Lessee shall each appoint one arbitrator who shall by profession be a licensed commercial real estate broker or an NAI real estate appraiser, and (iii) Tenant who shall pay Tenant’s Prorata Share of Operating Expenses throughout be familiar with the renewal term. As used herein, premises Building and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age have been active in the County brokering or appraisal of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level properties in an area within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location a three (3) mile radius of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthPremises. If Tenant, by written notice delivered no later than thirty Each such arbitrator shall be appointed within fifteen (3015) days after the date Landlord notifies Tenant Lessee's notice to Lessor of the Market its election to have New Base Rental Rate, objects to the Market Base Rental Rate Rent determined by Landlord and elects to submit the rate determination to appraisal, then, this arbitration procedure. The two arbitrators so appointed shall within seven fifteen (715) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified appraiser under the same criteria set forth hereinabove for qualification of the initial two arbitrators. Failing such agreement, either Lessor or Lessee shall have the right to petition for the appointment of the third arbitrator by the Presiding Judge of the Superior Court of the County of San Diego. The three arbitrators shall within five thirty (530) days after the other party has given notice of the name appointment of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by third arbitrator reach a decision as to whether the parties shall meet promptly use Lessor's or Lessee's proposed New Base Rent, and attempt to set the Market Base Rental Rateshall notify Lessor and Lessee therefore. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either The decision of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president majority of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection three arbitrators shall be made within three (3) daysbinding upon Lessor and Lessee. All determinations The cost of Market Base Rental Rate the arbitration shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed paid by it Lessor and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaidLessee equally. In no event may either Landlord event, shall the monthly rent for the Option term be less than a four percent (4%) increase over the previous year's monthly rent. Upon agreement to the terms of the Option, Lessor shall immediately execute an Extension of Lease Agreement. All rights of Lessee with respect to the Option shall terminate and be of no further force or Tenant elect effect if Lessor and Lessee do not come to agreement on the Option. Neither Lessor nor Lessee shall have the right to have a court or third party set the Monthly Rent. EXHIBIT "A" SITE PLAN THIS EXHIBIT IS ATTACHED TO AND MADE PART OF THE LEASE DATED JULY 17, 1998 BY AND BETWEEN: PACIFIC GULF PROPERTIES, INC., a Maryland corporation as LESSOR and NATURAL ALTERNATIVES INTERNATIONAL, INC., a Delaware corporation as LESSEE, for the premises located at 1215 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇/▇/▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. VISTA DISTRIBUTION CENTER [SITE PLAN] EXHIBIT "B" RULES & REGULATIONS THIS EXHIBIT IS ATTACHED TO AND MADE PART OF THE LEASE dated July 17, 1998, BY AND BETWEEN: PACIFIC GULF PROPERTIES, INC., a Maryland corporation as Lessor and NATURAL ALTERNATIVES INTERNATIONAL, INC., a Delaware corporation as LESSEE, for the premises located at 1215 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇/▇/▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. Lessee shall be entitled to park in the vehicle parking spaces provided in Section 1.11 in common with other tenants of Lessor. Lessee agrees not to extend overburden the Lease based parking facilities and agrees to cooperate with Lessor and other tenants in the use of parking facilities. Lessor reserves the right in its absolute discretion to determine whether parking facilities are becoming crowded and, in such event, to allocate parking spaces among Tenants or to designate specific areas within which Lessee must park.
2. No automobile, recreational vehicle or equipment, other than Lessee's trucks, shall remain upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.common area longer than twenty-four
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Sources: Industrial Real Estate Lease (Natural Alternatives International Inc)
Option to Extend. Tenant shall have an option may extend this Lease for a two (2) five (5) year extended terms by giving Landlord written notice of its intention to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for do so no more than one (1) additional term of five year and no less than nine (59) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of the preceding Lease Term; provided, however, that Tenant is not in default beyond the applicable cure period under the Lease on the date of giving such notice or on the date of commencement of the extended term. In the event that Tenant is in material default (but not beyond the applicable cure period) at the time of giving notice to Landlord of its intention to extend the term, at Landlord's option such notice shall not be effective until the default has been cured. For purposes of this Section, any monetary default shall be deemed material. The extended term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the initial Lease Term shall not apply during such option period: (i.e.a) any right to rent-free possession, by September 4, 2007(b) of its election any right to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in beyond the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as extended term set forth herein, (ii) options to extend or to expand, which shall not be applicablehereinabove, and (iiic) any right to continue to pay the same Base Rent. Landlord and Tenant hereby acknowledge and agree that the Base Rent during the extended term shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject be equal to the limitations set forth "FAIR MARKET RENTAL" for the Premises, as determined in accordance with this paragraphSection, “Market except that in no event shall the Base Rental Rate” Rent for the extended term be less than the Base Rent payable at the end of the initial Lease Term. The parties shall mean as of any have until the date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a that is five (5) year months prior to the date that the original Term, will expire in order to agree on Base Rent during the extended term. If the parties agree on the Base Rent for the extended term during that period, they shall immediately execute an amendment to this Lease stating the Base Rent. If the parties are unable to agree on Base Rent for the extended term during that period, then the Fair Market Rental shall be established by appraisal. Landlord and Tenant shall each appoint one appraiser at least four (4) months prior to the expiration of space in comparable first class multi-tenant office buildings the original Term; provided, however, that if either party fails to designate an appraiser within the time period specified, then the appraiser who is designated shall conclusively determine the Fair Market Rental. If two (2) appraisers are designated, then the two appraisers shall mutually select and agree upon a third appraiser within fourteen (14) calendar days. The third appraiser shall then prepare a written appraisal report that shall conform with the standards of comparable sizeprofessional practice of the American Institute of Real Estate Appraisers. The third appraiser shall be unrelated to, location and age shall have never been employed by Landlord or Tenant or any entity related to either party. If the two appraisers reasonably cannot agree upon a third appraiser, then either party hereunder may request that the Presiding Judge of the Santa Clar▇ ▇▇▇nty Superior Court appoint such third appraiser. The Fair Market Rental shall be equal to the amount designated by the third appraiser and each of the parties shall be bound thereby. Each party shall bear the cost of the appraiser appointed by it and the parties shall share equally in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location cost of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forththird appraiser. If Tenant, by written notice delivered no later than thirty No person shall be appointed or designated an appraiser unless he or she is (30i) days after the date Landlord notifies Tenant an independent appraiser who is a currently certified member of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord American Institute of Real Estate Appraisers (with MAI designation) and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that unless he or she has at least five (5) years’ full-time commercial appraisal ' experience as an appraiser, including at least one year in Santa Clar▇ ▇▇▇nty, or (ii) a real estate broker with a minimum of at least ten (10) years' experience in Boulder County to determine leasing of commercial space in the vicinity of the Premises. Landlord and Tenant intend that the "Fair Market Base Rental Rate, such process Rental" shall be deemed to be completed within twenty (20) days after the date rent per square foot of the appointment rentable area of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, space that is then the single appraiser shall be the sole appraiser being charged for space located in buildings that are comparable in quality and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.offer similar amenities
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Option to Extend. Tenant shall have Landlord reserves the right to refuse to allow you the option of extending the term of this Lease if you or a permitted assignee or sublessee are not occupying and doing business from the Premises (other than as a result of casualty) at the time an option to extend and renew is exercised or at the time an extended term commences or if you are in default under the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to beyond the expiration of the applicable grace period, if any, either at the time the option to extend is exercised or at the time the extended term commences or if you fail to timely provide Landlord with the Renewal Notice . Subject to the foregoing, Landlord grants to you the option to extend the term of this Lease for a five year extended term (the “First Extended Term”), the First Extended Term (i.e.to begin on the day after the end of the primary term of this Lease. To effectively exercise your First Extended Term option, by September 4, 2007) of its election to exercise you must timely provide the optionLandlord with the Renewal Notice. If Tenant elects Landlord does not to extend or fails to timely exercise its optionreceive the Renewal Notice, time being of the essence, you will not be entitled to exercise your First Extended Term option. If you exercised your First Extended Term option, and subject to the first sentence of this Section, Landlord grants to you the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of this Lease for a second five year extended term (the Lease as provided in “Second Extended Term”), the immediately preceding sentence, Tenant shall be deemed Second Extended Term to have elected to extend begin on the Lease Term for day after the period specified in Tenant’s original notice of exercise end of the renewal option at First Extended Term. To effectively exercise your Second Extended Term option, you must timely provide the Market Base Rental Rate specified by Landlord in response to said exercise noticewith the Renewal Notice. Any such extension shall be upon all If Landlord does not timely receive the Renewal Notice, time being of the termsessence, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall you will not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject entitled to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordexercise your Second Extended Term option.
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Option to Extend. A. Landlord grants to Tenant shall have an the option to extend the term of this Lease for two 3-year periods commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Tenant gives to any portion or portions thereof) Landlord and Landlord receives notice of the exercise of the option to extend this Lease for one (1) said additional term of five no later than twelve (512) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate expire;
(ii) At the time said written notification of exercise of option is given and received, Tenant shall not be in default under any of no further force and effect the material obligations of this Lease to be performed by Tenant and this Lease shall terminate upon not have previously terminated nor terminated prior to the expiration commencement of the initial Termoption term;
(iii) All of the terms and conditions of this Lease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows: The rent payable by Tenant during the first option period shall be the Fair Market Rental Value of the Premises (as defined below) at the commencement date of the option period. Upon receipt There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the first option period. The rent in the first year of the second option period shall be the rent in the last year of the first option period to which will be added a C.P.I. increase not to exceed four percent (4%). There shall be an annual C.P.I. increase not to exceed four percent (4%) in each subsequent year of the second option period. All of the C.P.I. increases during the option periods shall be calculated on the basis of the formula provided in the Lease P. 5.B. If Landlord and Tenant cannot agree on the Fair Market Rental Value of the Premises for the extension periods within forty-five (45) days after the Tenant has notified Landlord of its exercise of the option, Landlord and Tenant shall each select, within forty-five (45) days of such notice from Tenant exercising notification, an appraiser who must be a qualified M.A.I. appraiser to determine said Fair Market Rental Value. If one party fails to so designate an appraiser within the renewal option herein grantedtime required, Landlord the determination of Fair Market Rental Value of the one appraiser who has been designated by the other party hereto within the time required shall be binding upon both parties. The appraisers shall submit in writing their determinations of Fair Market Rental Value to both parties within thirty (30) days after their selection. If the difference between the two determinations is ten percent (10%) or less of the higher appraisal, then the average between the two determinations shall be the Fair Market Rental Value of the Premises. If said difference is greater than ten percent (10%), then the two appraisers shall within twenty (20) days of the date that the later submittal is submitted to the parties designate a proposal for third appraiser who must also be a qualified M.A.I. appraiser. The sole responsibility of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for third appraiser will be to determine which of the renewal termdeterminations made by the first appraisers is most accurate. Tenant The third appraiser shall have thirty (30) days from the receipt no right to propose a middle ground or any modification of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance either of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of determinations made by the Market Base Rental Rate and election to initiate the appraisal process set forth belowfirst two appraisers. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant The third appraiser's choice shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject submitted to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level parties within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant his or her selection. Such determination shall bind both of the parties and shall establish the Fair Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days Value of the date of Tenant’s objection, each Premises. Each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole pay for their own appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either pay an equal share of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it fees and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection expenses of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. Provided no Event of Default exists under this Lease after any applicable cure period has expired, Tenant shall have an the option to extend and renew the Lease as to all of the Premises Term for two (but not as to any portion or portions thereof) for one (12) additional terms of sixty (60) months each (each such term to be referred to herein as an "EXTENSION TERM"). Tenant shall exercise each option by giving Landlord notice (the "OPTION EXERCISE NOTICE") of exercise no earlier than three hundred sixty-five (5365) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two days and no later than one hundred seventy eighty (270180) days prior to the expiration date of the Initial Lease Term or the then-expiring Extension Term, as applicable (i.e., by September 4, 2007) of its election to exercise the option"OPTION EXERCISE DATE"). If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Initial Lease Term for the period specified in Tenant’s original notice or any Extension Term of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any this Lease, such extension Extension Term shall be upon and subject to all of the terms, covenants and conditions and covenants of this Lease except as to Lease, except: The Base Rent per rentable square foot during each Extension Term shall be the greater of (ia) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject Rent per rentable square foot in effect immediately prior to the limitations set forth in this paragraph, “Market expiration of each Extension Term or (b) a rate equal to ninety-five percent (95%) of the average prevailing Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) Rent per rentable square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal in the Building (on leases (based on with a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age for all new leases executed during the six (6) month period immediately preceding the Option Exercise Notice ("COMPARABLE LEASES"). If there were no leases executed in the County of BoulderBuilding during such six (6) month period, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within then Comparable Leases in the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location twelve (12) months prior to the date of the applicable buildingOption Exercise Notice will be used to determine the average prevailing Base Rent per rentable square foot in the Building. The average prevailing Base Rent shall be reduced by concessions then being offered or granted by Landlord to tenants in the Building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes including free or deferred rents and utilities, relative services providedmoving allowances, and so forthtenant improvement allowances for renewing Tenants only. If Upon request by Tenant, by written notice delivered no later not less than thirty (30) days after prior to the date Landlord notifies Tenant Option Exercise Date, prior to the expiration of the Market Base Rental RateLease Term, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given give Tenant notice of the name of average prevailing Base Rent per rentable square foot. If Tenant fails to exercise its option to extend hereunder by the appraiserOption Exercise Date, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate option set forth in the first paragraph of this Section. Each of the parties Article 1(g) shall pay for the appraiser appointed by it automatically terminate and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, Landlord shall be free to market the Premises to potential tenants. Refurbishment Allowance. Landlord will provide a person who has not previously acted in any capacity for either partyrefurbishment allowance of $3.00 per usable square foot at the beginning of each Extension Term. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.[ILLEGIBLE] ----------- INITIALS
Appears in 1 contract
Sources: Office Lease (Mesa Air Group Inc)
Option to Extend. So long as the Lease is in full force and effect and, at the time of exercise of the option to renew, Tenant is not in default under the Lease beyond any applicable notice and cure period provided herein, Tenant shall have an option two (2) successive options to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional a term of five (5) years. In order years each (each, an "Option"), on the same terms and conditions set forth in the Lease, except as modified by the terms and conditions set forth below:
i) If Tenant elects to exercise an Option, Tenant must provide Landlord with written notice of its election to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy Option no earlier than the date which is eighteen (27018) days months prior to the expiration of the Lease Term then current term and not later than the date which is six (i.e., by September 4, 20076) of its election months prior to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Termthen current term of the Lease. Upon receipt If Tenant fails to timely provide such notice, Tenant shall have no further right to exercise any Option or to extend the term of such notice from the Lease. Time is of the essence for this provision.
ii) The Base Rent for each Option term shall be the Fair Market Rental Rate of the Premises in effect at the expiration of the then current term of the Lease. "Fair Market Rental Rate" shall be the then going rate for comparable space at the ▇▇▇▇▇▇ Airport Center and other comparable buildings in the Airport sub-market. The determination of the Fair Market Rental Rate shall take into consideration any concessions and inducement then being offered by landlords in the submarket area, as well as the quality of the buildings, the extent of Tenant's liability under the Lease, abatement provisions reflecting free rent and/or no rent during the period of construction or subsequent to the commencement date as to the space in question, brokerage commissions, length of the lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and other generally applicable conditions of tenancy. There shall be no minimum rent in the determination of Fair Market Rental Rate.
iii) If Landlord and Tenant exercising do not agree on the renewal option herein granted, Landlord shall submit in writing Fair Market Rental Rate within thirty (30) days of Tenant's delivery of notice of its intent to exercise an Option, then Landlord and Tenant shall submit the matter to arbitration as set forth below.
(a) Within fifteen (15) days after the Landlord and Tenant's failure to agree as set forth above, Landlord and Tenant shall each appoint an independent appraiser who shall by profession be a proposal real estate broker who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial property in the Las Vegas area. Landlord and Tenant shall each submit to the appraisers their respective Fair Market Rental Rate determinations (and back-up information regarding their determination), and the determination of the appraisers shall be limited solely to the issue of whether Landlord's or Tenant's submitted Fair Market Rental Rate for the then current Premises is the closest to the actual Fair Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termPremises, as determined by the appraisers. Tenant Such arbitrators may (or at the request of either party, shall) hold such hearings and require such briefs as the arbitrators, in their discretion, determine to be necessary. The arbitrators shall, within fifteen (15) days of their appointment, agree upon and appoint a third appraiser who shall have the same qualifications required of the initial two appraisers. If the two appraisers fail to agree on a third appraiser, both appraisers shall be dismissed and the matter shall be submitted to arbitration under the Judicial Arbitration and Mediation Service ("JAMS"), but based on the same procedures set forth herein, however, in the event that the Property association recorded covenants and restrictions requires such matter to be determined in another manner, then the parties agree to do so.
(b) The three appraisers shall reach a decision within thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiserthird appraiser and shall promptly notify Landlord and Tenant of such determination. The decision of the majority of the three appraisers shall be binding upon the parties.
(c) If a any party does not shall fail to appoint a qualified an appraiser within the time period set forth above, the other party shall provide written notice to the non-performing party regarding such failure, and in the event such non-performing party fails to appoint an appraiser within five (5) days after the other party has given notice Business Days of the name receipt of the appraisersuch notice, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and one of them shall bear oneappoint another appraiser under the requirements of this sub-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordsection iii.
Appears in 1 contract
Sources: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Option to Extend. Provided that no Event of Default shall have occurred which remains uncured and provided that Tenant or any permitted assignee or sublease shall be in possession of the Leased Premises, Tenant shall have an option the right, exercisable by given written notice ("First Renewal Notice") thereof to extend and renew the Lease as to all of the Premises Landlord at least nine (9) months but not as to any portion or portions thereofbefore twelve (12) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of the Lease original Term (i.e.of this Lease, by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being the Term of this Lease for an additional term of sixty (60) calendar months ("First Renewal Period") upon all of the essenceterms, covenants and conditions contained in this Lease, except that the option annual rent shall automatically terminate be Market Rent. The First Renewal Notice shall be deemed inoperative and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, unless Landlord shall submit in writing receive within thirty (30) days of the First Renewal Notice a proposal written statement from Amoco Corporation, if it is the then guarantor of Tenant's obligations hereunder, consenting to the First Renewal Notice. Landlord shall give Tenant notice ("Landlord's Renewal Notice") of Landlord's determination of Market Rent, which shall not be less than Six Hundred Seventy-Eight Thousand Six Hundred Twelve and No/100 Dollars ($678,612.00) per year, for the then current First Renewal Period not later than ten (10) days after Landlord's receipt of the First Renewal Notice. In the event that Tenant disagrees with Landlord's determination of Market Base Rental Rate Rent, Tenant agrees to notify Landlord within ten (per rentable square foot per annum, “NNN”10) for the renewal term. days after receipt of Landlord's Renewal Notice and thereafter Landlord and Tenant shall have attempt for a period of thirty (30) days from following the receipt giving of said notice from Landlord's Renewal Notice to agree upon the Market Rent paid during the First Renewal Period. In the event that Landlord and Tenant fail to notify Landlord agree in writing upon the determination of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term Rent for the period specified in Tenant’s original notice of exercise of First Renewal Period by the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, date which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than is thirty (30) days after the date of Landlord's Renewal Notice, Tenant's exercise of such option to extend shall be null and void and neither Landlord notifies nor Tenant shall have any further rights or liabilities with respect thereto. Provided that no event of default shall have occurred which remains uncured, and provided that Tenant or any permitted assignee or sublessee shall be in possession of the Market Base Rental RateLeased Premises, objects and provided the Term of this Lease has been extended for the First Renewal Period, Tenant shall have the right, exercisable by giving notice ("Second Renewal Notice") thereof to Landlord at least nine (9) months but not before twelve (12) months prior to the expiration of the First Renewal Period, to extend the term of this Lease for an additional term of sixty (60) calendar months ("Second Renewal Period") upon all of the terms, covenants and conditions contained in this Lease except that the annual rental shall be Market Base Rental Rate determined by Rent. The Second Renewal Notice shall be deemed inoperative and of no force and effect unless Landlord and elects to submit the rate determination to appraisal, then, shall receive within seven thirty (730) days of the date Second Renewal Notice a written statement from Amoco Corporation, if it is the then guarantor of Tenant’s objection's obligations hereunder, each party consenting to the Second Renewal Notice. Landlord shall appoint give Tenant notice ("Landlord's Renewal Notice") of Landlord's determination of Market Rent, which shall not be less than the annual rent payable during the First Renewal Period, for the Second Renewal Period not later than ten (10) days after Landlord's receipt of the Second Renewal Notice. In the event that Tenant disagrees with Landlord's determination of Market Rent, Tenant agrees to notify Landlord within ten (10) days after receipt of Landlord's Renewal Notice and thereafter Landlord and Tenant attempt for a non-affiliated certified M.A.I. Appraiser that has at least five period of thirty (530) years’ full-time commercial appraisal experience in Boulder County days following the giving of Landlord's Renewal Notice to determine agree upon the Market Base Rental Rate, such process Rent to be completed within twenty paid during the Second Renewal Period. In the event that Landlord and Tenant shall fail to agree in writing upon the determination of Market Rent for the Second Renewal Period by the date which is thirty (2030) days after the date of the appointment Landlord's Renewal Notice, Tenant's exercise of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This such option to extend may not shall be exercised null and the Lease void and neither Landlord nor Tenant shall not be extended if Landlord has given Tenant notice of default which default is not cured within have any applicable cure periods further rights or waived by Landlordliabilities with respect thereto.
Appears in 1 contract
Option to Extend. Tenant shall have an Lessor hereby grants to Lessee the option to extend and renew the this ---------------- Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term of five (5) yearsyears commencing on the first day after the Expiration Date of the initial term (the "Renewal Term"). In order Lessee must exercise the option to extend, if at all, by giving Lessor written notice of such exercise such optionnot less than seven (7) months prior to the Expiration Date of the initial term. Upon the exercise of the option to extend, Tenant the term of this Lease shall notify Landlord be extended through the Expiration Date of the Renewal Term on the same terms and conditions as contained herein, except that there shall be no further option to extend the term of this Lease beyond the Renewal Term, and the Base Monthly Rent during the Renewal Term shall be determined pursuant to this Section. Base Monthly Rent for the Renewal Term shall be the greater of (a) the Base Monthly Rent scheduled for the final month of the preceding term, or (b) the fair market rental for space in writing at least two hundred seventy (270Park 405. When Lessee exercises the option to extend this Lease, and no later than five(s) days months prior to the expiration of the Lease Term (i.e.initial term, by September 4, 2007) of its election Lessor and Lessee shall execute and deliver an amendment to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set setting forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth Monthly Rent for the Renewal Term and the commencement and expiration dates of the Renewal Term. If such Amendment is not executed within the period referenced herein, (ii) options any Option to extend or to expand, which shall not be applicable, Extend will automatically terminate. In the event that the Lessor and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they Lessee are unable to agree on upon the Market Base Rental Rate within twenty (20) days after fair market rate, the date matter shall be determined by arbitration in accordance with the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either Commercial Arbitration Rules of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the American Arbitration Association then president in effect. The decision of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated arbitrators in this Section, which selection such matter shall be made within three (3) daysfinal and binding upon the parties. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each Following completion of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiserarbitration, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after party whose estimate was most at variance with the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordArbitrator will pay all costs associated with this arbitration.
Appears in 1 contract
Option to Extend. Tenant shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for is hereby granted one (1) additional term option to extend the Term of this Lease for five (5) years. In order If the option is exercised by the Tenant, the extended Term shall begin upon the expiration of the original Term of this Lease; and all terms, covenants and provisions of this Lease shall apply to the extended Term. If Tenant elects to exercise such optionthe option to extend, provided this Lease is in full force and effect and Tenant has performed all of the terms, covenants and provisions hereof on Tenant’s part to be performed, Tenant shall notify do so only by giving Landlord notice in writing at least two hundred seventy of its intention to do so not later than twelve (27012) days months prior to the expiration of the Lease original Term (i.e.of this Lease.
4. The following paragraphs are added to Section 1.5, by September 4Condition of Improvements, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essenceLease Agreement: ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇. Prior to the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantedCommencement Date for Suite 210, Landlord shall submit in writing within thirty (30) days undertake and complete those certain improvements to Suite 210 of the Leased Premises at a proposal for the then current Market Base Rental Rate (per rentable square foot per annumcost of $430,000.00. Landlord shall provide a one-time allowance of $300,000.00, “NNN”) for the renewal term. and Tenant shall have thirty (30) days from pay the receipt balance of said notice from $130,000.00 upon occupancy of the Leased Premises. In addition to paying $130,000.00 upon occupancy, Tenant agrees to pay additional improvement rent of $6,083.00 per month for 60 months. The additional improvement rent is reflected in the Base Rent Schedule attached hereto and made a part hereof. All Landlord to notify Improvements shall be completed by Landlord in writing a first class manner, using skilled contractors and new, high-quality materials. Upon completion of (i) the Landlord Improvements described in this Section 1.5, and Tenant’s acceptance of the proposed Market Base Rental Ratesame, or (ii) Tenant’s rejection Tenant shall take possession of Suite 210 of the Market Base Rental Rate Leased Premises in its then “As Is” condition. ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇. Tenant shall take possession of Suite 205 of the Leased Premises in its then “As Is” condition. Any buildout and election to initiate the appraisal process set forth belowadditional tenant improvement rent must be negotiated separately between Landlord and Tenant.
5. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term Section 2.1 of the Lease Agreement is deleted in its entirety and hereby amended and restated as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.follows:
Appears in 1 contract
Sources: Lease Agreement (Cellular Dynamics International, Inc.)
Option to Extend. Subsection G of Lease Exhibit E to the original Lease is deleted in its entirety and replaced with the following. Tenant shall have an option the right, to be exercised as hereinafter provided, to extend and renew the term of this Lease as to all of the Premises for two (but not as to any portion or portions thereof2) for one (1) additional term periods of five (5) years. In order to exercise years each (each such optionperiod, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to a “Next Extension Term”), on the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate following terms and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations hereinafter set forth. Each Next Extension Term shall be upon the same terms, covenants and conditions as in this Lease, except that Base Rent shall be the greater of (A) the annual Base Rent in effect immediately prior to the Next Extension Term; and (B) the Fair Market Base Rent for such space on the date such Next Extension Term shall commence. “Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the Premises as of the commencement of the Next Extension Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, quality, size and location in the Maple Grove, Minnesota area, with neither party under a compulsion for the appropriate term. Tenant shall notify Landlord of its desire to extend the term for the Next Extension Term by notifying Landlord in writing (“Extension Notification”) at least nine (9) months prior to commencement of the Next Extension Term. Upon Landlord’s receipt of the Extension Notification, Landlord and Tenant shall make a good faith effort to agree upon the Fair Market Base Rent of the Premises for the Next Extension Term. In the event that Landlord and Tenant fail to agree upon the Fair Market Base Rent within forty-five (45) days of Landlord’s receipt of the Extension Notification, then Tenant’s extension right shall automatically terminate. Tenant’s option to extend as set forth in this paragraph, “Market Base Rental Rate” Section shall mean as be contingent upon this Lease being in full force and effect and Tenant not being in default in the performance of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable buildingterms, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes covenants and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects conditions herein contained in respect to the Market Base Rental Rate determined by Landlord and elects a matter as to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default has been given hereunder which default is has not cured been remedied within any applicable cure periods or waived by Landlordthe time limited in this Lease.
Appears in 1 contract
Sources: Lease (Vascular Solutions Inc)
Option to Extend. (a) Landlord hereby grants Tenant shall have an a single option to extend and renew the Extended Term of the Lease as to all for an additional period of the Premises (but not as to any portion or portions thereof) for one (1) additional term year (such period may be referred to as the “Option Term”), as to the entire Premises as it may then exist, upon and subject to the terms and conditions of five this Section (5the “Option To Extend”), and provided that at the time of exercise of such right: (i) yearsTenant must be in occupancy of the entire Premises; and (ii) Tenant then has a liquid net worth of no less than Forty Million Dollars ($40,000,000.00), and such determination of liquid net worth shall count as assets of Tenant only cash, cash equivalents and liquid investments, and such determination shall be certified by Tenant’s Chief Financial Officer, and supported by Tenant’s financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. In order Such supporting financial statements to be delivered to Landlord shall consist of Tenant’s audited financial statements for the most-recent, completed fiscal year, and Tenant’s financial statements for all fiscal quarters completed after the end of the most-recent, completed fiscal year and before the date of Tenant’s Election Notice, with the financial statements for the most-recent, completed quarter certified by Tenant’s Chief Financial Officer.
(b) Tenant’s election (the “Election Notice”) to exercise such option, Tenant shall notify the Option To Extend must be given to Landlord in writing at least two hundred seventy no earlier than the date which is six months (2706) days prior months before the Expiration Date and no later than the date which is three (3) months before the Expiration Date. If Tenant either fails or elects not to exercise its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void.
(c) The Option Term shall commence immediately after the expiration of the Lease preceding Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration Lease. Tenant’s leasing of the initial Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term. Upon receipt , but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of such notice from Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant exercising any allowance therefor, except to the renewal option herein grantedextent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit A hereto, provided, however, Landlord shall submit in writing by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a proposal for rent credit equal to the then current amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise.
(d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Base Rental Rate (per rentable square foot per annumas defined in Exhibit A) plus Rent Adjustments and/or certain Operating Expenses (if applicable, “NNN”based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the renewal termPremises. Tenant shall have thirty may, within fifteen (3015) days from the after receipt of said thereof, deliver to Landlord a written notice from Landlord to notify Landlord in writing of either: (i) Tenantaccepting Landlord’s acceptance of determination, in which case the proposed Market Base Rental Rate, extension shall be effective and binding (subject to Subsection (g) below) at the accepted rate; or (ii) setting forth Tenant’s rejection of good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Base Rental Rate and election to initiate the appraisal process set forth belowOption Term Rent. If Tenant fails Tenant’s failure to timely accept or reject the Market Base Rental Rate specified in Landlord’s deliver such notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant within such fifteen (15) day period shall be deemed to have elected to extend its cancellation of the Lease Term for Option. In the period specified in event Tenant has delivered notice setting forth Tenant’s original notice of exercise of the renewal option at the different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level Option Term Rent is reached within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after Landlord’s receipt of Tenant’s estimate, the date Landlord notifies Tenant Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit A.
(e) Promptly after final determination of the Fair Market Base Rental Rate, objects Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Market Base Rental Rate determined by Landlord Lease, and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party Tenant shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, execute such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser amendment within five (5) business days after Landlord and Tenant agree to the other party has given notice form of the name proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the appraiserforegoing to the contrary, then the single appraiser failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend.
(f) This Option to Extend is personal to Maxygen, Inc. and may not be the sole appraiser used by, and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt not be transferable or assignable (voluntarily or involuntarily) to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either any person or entity except an assignee of the parties Lease which is a Tenant Affiliate and has satisfied the requirements of Article Ten of the Lease applicable to a Tenant Affiliate.
(g) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Lease, after giving five (5) days’ prior written notice Section with respect to the other partyOption to Extend, may apply with the effect of canceling and voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant’s failure to timely exercise the then president of Option to Extend in accordance with the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph provisions of this Section. Each .
(ii) The existence at the time Tenant exercises the Option to Extend of any default on the part of Tenant under the Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default.
(iii) Tenant’s third default under the Lease prior to the time Tenant exercises the Option to Extend, notwithstanding that all such defaults may subsequently be cured.
(h) Without limiting the generality of any provision of the parties Lease, time shall pay for the appraiser appointed by it and shall bear one-half be of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed essence with respect to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection all of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three provisions of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordthis Section.
Appears in 1 contract
Sources: Lease (Maxygen Inc)
Option to Extend. A. Landlord hereby grants Tenant shall have two (2) consecutive option(s) (individually, an option “Option to Extend Term”) to extend and renew the initial Lease as to all of the Premises Term (but not as to any portion or portions thereof“Initial Term”) for one (1) the entire Premises only in accordance with the terms of this Article 45. An Option to Extend Term shall extend the Term of this Lease for an additional term of five (5) years. In order to exercise such optionyears (individually, Tenant shall notify Landlord in writing at least two hundred seventy (270an “Extended Term”) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate commencing upon the expiration of the initial Initial Term or the first Extended CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A TRIPLE ASTERISK (***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth belowas applicable. If Tenant fails exercises an Option to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentenceExtend Term, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon then all of the terms, conditions and covenants of terms contained in this Lease shall continue in full force and effect during the applicable Extended Term, except as with respect to the following:
(i1) Annual Base Rent for the amount of Base Rent, which applicable Extended Term shall be determined as set forth hereinadjusted on the first day of the applicable Extended Term to an amount equal to ninety-five percent (95%) of the then Fair Market Rental Value of the Premises, (ii) options to extend or to expandincluding escalations and typical step increases, which but in no event less than Annual Base Rent payable immediately preceding the applicable Extended Term. The term “Fair Market Rental Value of the Premises” shall not be applicablebe, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in further terms of this paragraphArticle 45, “Market Base Rental Rate” shall mean Landlord’s good faith calculation of the then prevailing fair market rental rate for the Premises as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension termapplicable Extended Term, and taking into consideration all elements affecting the first Base Rent payment becoming due after lease transaction, including standard tenant improvement allowances for Class “A” office buildings (inclusive of parking decks) in the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordScottsdale/Loop 101 office market area.
Appears in 1 contract
Option to Extend. Provided Tenant shall have is not in default under any provision of the Lease, Landlord hereby grants to Tenant an option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term corresponding to and co-terminus with 1▇▇▇ ▇▇▇▇ ▇▇., when the existing term expires, on the terms and conditions set forth in this paragraph. Tenant may exercise this option by giving Landlord written notice of five its intention not less than one hundred eighty (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270180) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) existing term of its election to exercise the optionthis Lease. If Tenant elects this Option is exercised, the Base Monthly Rent for the Premises shall equal the then current fair market monthly rent (“Fair Market Rent”) which shall not to extend or fails to timely exercise its option, time being be less than $2500.00 per month for the Premises as of the essencecommencement date of the applicable extended term, and adjusted upwards each year for at least 3% per annum. If the option parties cannot agree on the amount of the “Fair Market Rent” and the annual adjustment to such Fair Market Rent within sixty (60) days prior to the commencement of such extended term, then the Fair Market Rent and the annual adjustment thereto shall automatically terminate be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of no further the Lease, shall remain in full force and effect and this Lease shall terminate upon apply during the expiration Option term. If the fair market rental value for the Premises needs to be determined by appraisal, Landlord and Tenant shall either agree to select one real estate appraiser or three real estate appraisers. Any real estate appraiser selected shall be a member of the initial Term. Upon receipt American Institute of such notice from Tenant exercising the renewal option herein grantedReal Estate Appraisers, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time years experience appraising commercial appraisal experience space located in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date vicinity of the appointment Premises, and shall act in accordance with the rules of the last appraiserAmerican Institute of Real Estate Appraisers. The Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with the improvements installed therein. If a party does not appoint a qualified only one appraiser within five (5) days after the other party has given notice of the name of the appraiseris selected, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties each party shall pay for the appraiser appointed by it and shall bear one-half of the cost fees and expenses of appointing the third appraiser and of paying that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the third appraiser’s fee. The third appraiser, however If three appraisers are selected, each party shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider bear the criteria above stated in determining fees and expenses of the Market Base Rental Rate. Within twenty (20) days after appraiser it selects and one-half of the selection fees and expenses of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. Tenant shall have an is given the option to extend and renew the term of all the provisions contained in this Lease as to all of the Premises for two (but not as to any portion or portions thereof) for one (12) additional term periods of five (5) yearsyears (each an “Extended Term”). In order to exercise such option, Tenant The first Extended Term shall notify Landlord in writing at least two hundred seventy (270) days prior to the commence following expiration of the Lease initial term and the second Extended Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being shall commence following expiration of the essence, first Extended Term. Tenant shall exercise each Extended Term by giving notice of exercise of the applicable option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon (“Option Notice”) to Landlord at least 180 days before the expiration of the initial term or first Extended Term, as applicable; provided that, if Tenant is in default beyond any applicable notice and cure period on the date of giving the Option Notice, the Option Notice shall be totally ineffective, or if Tenant is in default beyond any applicable notice and cure period on the date the Extended Term is to commence, the Extended Term shall not commence and this Lease shall expire at the end of the initial term or the first Renewal Term, as applicable. Upon receipt of such notice from Tenant exercising Notwithstanding anything contained herein to the renewal option herein grantedcontrary, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. if Tenant shall have thirty (30) days from fail to give written notice within the receipt of said notice from Landlord to notify Landlord in writing of (i) aforesaid time limit, Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election right to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant exercise each option shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than nevertheless continue until thirty (30) days after the date Landlord notifies shall have given Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of Landlord’s election to terminate such option, and Tenant may exercise such option at any time until the name expiration of said thirty (30) day period. It is the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either intention of the parties to avoid forfeiture of Tenant’s rights to extend the Term under the options set forth in this LeaseSection through inadvertent failure to give notice of exercise thereof within the time limits prescribed. Accordingly, after giving five (5) days’ prior written if Tenant shall fail to give notice to Landlord of Tenant’s election to extend the other partyTerm for the Extended Term, may apply and if Landlord shall fail to give notice to Tenant of Landlord’s election to terminate Tenant’s right to extend this Lease for the Extended Term, then president the Term shall be automatically extended from month to month upon all of the real estate board of Denverterms and conditions then in effect, Colorado subject to Tenant’s right under such option to extend the Term for the selection remainder of the Extended Term and to Landlord’s right to place the thirty (30) day limit on such option by a third appraiser who meets notice in the qualifications stated manner provided in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not other right to extend the Lease based upon term beyond the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordsecond Extended Term.
Appears in 1 contract
Option to Extend. Tenant shall have Lessor hereby grants Lessee an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided for one additional period of five years commencing immediately after the expiration of the term of the Lease, upon the same terms and conditions contained herein, except that the Rent for the Premises shall be equal to the fair market base rent for the Premises. Lessee must exercise the option granted herein on or before the date that is six (6) months prior to the expiration of the initial term of the Lease. In the event Lessee fails to timely exercise the option granted herein, Lessee shall have no right to extend the term of the Lease. If Lessee properly exercises the option granted herein, references in the immediately preceding sentence, Tenant Lease to the "term" shall be deemed to have elected mean the option term unless the context clearly provides otherwise.
a. If Lessee properly exercises its option to extend the Lease Term term of the Lease, the Rent during the option term shall be determined in the following manner. The Rent shall be adjusted to an amount equal to the fair market base rent for the period Premises as of the commencement of the option term for a term equal to the option term, as specified in Tenant’s original by Lessor by notice to Lessee not less than sixty (60) days prior to commencement of the option term, subject to Lessee's right of arbitration as set forth below. If Lessee believes that the fair market base rent specified by Lessor exceeds the actual fair market base rent for the Premises as of commencement of the option term, then Lessee shall so notify Lessor within ten (10) business days following receipt of Lessor's notice. If the parties are unable to agree upon the fair market base rent for the Premises within ten (10) days after Lessor's receipt of notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the termsLessee's objection, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which base rent as of commencement of the option term shall be determined as set forth herein, follows:
(ii1) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within Within twenty (20) days after the date receipt of Lessor's notice specifying fair market base rent, Lessee, at its sole expense, shall obtain and deliver in writing to Lessor a determination of the appointment fair market base rent for the Premises for a term equal to the option term from a broker ("Lessee's Broker") licensed in the State of Illinois and engaged in the industrial brokerage business in the City of Addison (and surrounding areas) for at least the immediately preceding five (5) years. If Lessor accepts such determination, the Rent for the option term shall be adjusted to an amount equal to the amount determined by Lessee's Broker.
(2) If Lessor does not accept such determination, within fifteen (15) days after receipt of the last appraiserdetermination of Lessee's Broker, Lessor shall designate a broker ("Lessor's Broker") licensed in the State of Illinois and engaged in the industrial brokerage business in the City of Addison (and surrounding areas) for at least the immediately preceding five (5) years. If Lessor's Broker and Lessee's Broker shall name a party does not appoint a qualified appraiser third broker, similarly qualified, within five (5) days after the other party has given notice appointment of Lessor's Broker. Each of said three brokers shall determine the fair market base rent for the Premises as of the name commencement of the appraiser, then option term for a term equal to the single appraiser shall be option term of the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate Lease within twenty fifteen (2015) days after the date appointment of the second appraiser has been appointedthird broker. The Rent payable by Lessee effective as of the commencement of the option term shall be increased to an amount equal to the arithmetic average of such three determinations; provided, they however, that if any such broker's determination deviates more than 10% from the median of such determinations, the Rent payable shall elect a third appraiser meeting be an amount equal to the qualifications stated in this paragraph within seven (7) days after the last day average of the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three closest determinations.
(3) daysLessor shall pay the costs and fees of Lessor's Broker in connection with any determination hereunder, and Lessee shall pay the costs and fees of Lessee's Broker in connection with such determination. All determinations The costs and fees of Market Base Rental Rate any third broker shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed paid one- half by it Lessor and shall bear one-half by Lessee.
b. If the amount of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has fair market base rent is not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection known as of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three commencement of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall option term, then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant Lessee shall continue to pay the applicable Base Rent required for in effect at the last full month expiration of the Lease initial term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement amount of the extension termfair market base rent is determined. When such determination is made, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate Lessee shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not pay to extend the Lease based Lessor any deficiency upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlorddemand.
Appears in 1 contract
Sources: Industrial Building Lease (Simpson Manufacturing Co Inc /Ca/)
Option to Extend. 15.1 So long as Equinix or an Affiliate as defined herein is the Tenant hereunder and occupies the entirety of the Leased Premises, and subject to the condition set forth in clause (b) below, Tenant or such Affiliate shall have an option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term option to extend the Lease Term with respect to the entirety of the Leased Premises (the "Option"), for a period of five (5) years. In order years from the expiration of the initial Lease Term (the "Extension Period"), subject to the following conditions:
(a) The Option shall be personal to Equinix or an Affiliate as defined herein and shall not be transferable, and shall be exercised, if at all, by written notice of exercise given to Landlord by Tenant or such option, Tenant shall notify Landlord in writing at least two hundred seventy Affiliate not more than twelve (27012) days months nor less than six (6) months prior to the expiration of the initial Lease Term Term;
(i.e.b) Anything herein to the contrary notwithstanding, by September 4, 2007) if Landlord determines within a period of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty forty-five (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (3045) days from the receipt date Landlord receives Tenant's or an Affiliate's notice of said notice from exercise ("Landlord's Election Period"), that Landlord to notify Landlord in writing of (i) Tenant’s acceptance will utilize all or any portion of the proposed Market Base Rental RateLeased Premises for Landlord's own use, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate the Option as to all of the Leased Premises, at Landlord's sole option, upon forty-five (45) days written notice to Tenant or such Affiliate; and
(c) Anything herein to the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises the Option or on the commencement date of the Extension Period, Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate the Option upon notice to Tenant.
15.2 In the event the Option is exercised in a timely fashion and Landlord does not elect to terminate pursuant to clauses (b) or (iic) Tenant’s rejection above, the Lease shall be extended for the term of the Extension Period upon all of the terms and conditions of this Lease, provided that the Base Monthly Rent for the Extension Period shall be the "Fair Market Base Rental Rate and election to initiate Rent" for the appraisal process Leased Premises, increased as set forth below. If For purposes hereof, "Fair Market Rent" shall mean the Base Monthly Rent reasonably determined pursuant to the process described below. In no event, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in a decrease of the Base Monthly Rent for the Leased Premises below the amount due from Tenant fails to timely accept or reject for the Market preceding portion of the initial Lease Term for which Base Rental Rate specified in Landlord’s notice or to elect not to extend Monthly Rent had been fixed. At the term end of the Lease as provided in Year coinciding with the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the first 12 month period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.Extension Period,
Appears in 1 contract
Sources: Sublease (Equinix Inc)
Option to Extend. A. Landlord hereby grants to Tenant shall have an the option to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) additional term period of five (5) years, commencing on the day following the expiration of the original term of the Lease, such option to be exercised by Tenant by written notice to Landlord given not less than nine (9) months and not more than twelve (12) months prior to the expiration of the original term of this Lease. If Tenant gives such notice, the original term of the Lease shall be extended for one (1) additional period of five (5) years, subject to all of the terms, covenants and conditions of this Lease, except the Base Rent shall be increased as provided below. If Tenant is in default under this Lease on the date such notice is given (whether or not such default is later cured), then at Landlord's election, such notice shall be void; or, if Tenant is in default under this Lease after the giving of such notice (whether or not such default is later cured), then at Landlord's election, such option to extend and Tenant's exercise of same shall be void and this Lease shall terminate at the end of the original term (unless sooner terminated pursuant to this Lease).
B. In order the event said option is exercised, in accordance with the provisions hereof, then in lieu of the amount of the Base Rent set forth in Article 3 above, the amount of the Base Rent for the Property for the first thirty (30) months of the Option term shall be equal to exercise such optionone hundred percent (100%) of the Fair Rental Amount at the time of determination for space comparable to the Property located in the vicinity of the Project, Tenant but in no event shall notify the new Base Rent be less than the amount of the Base Rent payable immediately prior to the expiration of the original term of the Lease. The determination of the Fair Rental Amount shall exclude the specialized improvements that are specifically constructed at Tenant's cost in connection with the processing and refrigeration functions of Tenant's business. If said option is exercised by ▇▇▇▇▇▇, Landlord in writing at least and ▇▇▇▇▇▇ agree to meet no later than two hundred seventy forty (270240) days prior to the expiration of the original term of the Lease Term (i.e., by September 4, 2007) of its election and negotiate in good faith to exercise determine the optionnew Base Rent for the option term. If Landlord and Tenant elects cannot to extend agree on such new Base Rent, the dispute shall be submitted for appraisal. For that purpose, Landlord and Tenant shall employ one person or fails to timely exercise its optionfirm as an appraiser (hereinafter called the "Independent Appraiser"), time being or if they cannot agree on one person or firm as an Independent Appraiser, they shall each employ one person or firm as an appraiser (hereinafter called "Landlord's Appraiser" in the case of the essenceone employed by Landlord, and "Tenant's Appraiser" in the case of the one employed by ▇▇▇▇▇▇), who shall, in turn, appoint a third person as an appraiser (who shall be MAI) if Landlord's Appraiser and Tenant's Appraiser cannot agree on the amount of the new Base Rent for the first thirty (30) months of the option term. Both Landlord and Tenant shall automatically terminate be bound by the determination of Fair Rental Amount set forth in the written report and be opinion of no further force the Independent Appraiser (if there is one) or appraisers (if there are two and effect they agree or if there are three and this Lease shall terminate upon they agree) or the average of their separate determinations (if there are three and any one appraiser's opinion differs from that of the other or others); provided, however, that any appraiser's or appraisers' determination of the new Base Rent which is less than the amount of the Base Rent payable immediately prior to the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the original term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions disregarded and covenants of this Lease except as to (i) the amount of the Base Rent, which Rent payable immediately prior to the expiration of the original term shall be determined substituted as set forth herein, (ii) options to extend if it were the appraiser's or to expand, which appraisers' determination. Any third appraiser shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level employed within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant employment of Landlord's Appraiser and ▇▇▇▇▇▇'s Appraiser, and shall deliver his report and opinion to both parties at the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord same time and elects to submit the rate determination to appraisal, then, within seven thirty (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (2030) days after he was first employed. Landlord shall pay the date fees of, and costs incurred by, Landlord's Appraiser, if any, and Tenant shall pay the fees of, and costs incurred by, Tenant's Appraiser, if any. The fees of, and costs incurred by, all other appraisers shall be paid equally by Tenant and Landlord. The new Base Rent for the first thirty (30) months of the appointment option term shall be increased on the first day of the last appraiser. If a party does not appoint a qualified appraiser within five thirty-first (531st) days after the other party has given notice month of the name option term in accordance with the provisions of Section 3.02, and such increased Base Rent shall apply thereafter for the remainder of the appraiseroption term. Such increase shall not be less than four percent (4%) or greater than eight percent (8%) per annum, then the single appraiser cumulative. No free rent shall be applicable to the sole appraiser option term.
C. The foregoing option may be exercised only as to the entire Property, and shall set the Market Base Rental Rateonly by Tenant. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated rights contained in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice personal to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it Tenant and shall bear one-half of the cost of appointing the third appraiser are not assignable and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may cannot be exercised and by Tenant on behalf of or for the Lease shall not be extended if Landlord has given Tenant notice benefit of default which default is not cured within any applicable cure periods subtenant or waived by Landlordassignee.
Appears in 1 contract
Option to Extend. Tenant shall have an A. Lessor hereby grants to Lessee the option to extend the term of this Lease for a Five (5) year period commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Lessee gives to any portion or portions thereof) Lessor and Lessor receives written notice of the exercise of the option to extend this Lease for one (1) said additional term of five (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days no earlier than nine months and no later than six months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or expire;
(ii) Tenant’s rejection The provisions of paragraph 39, including the provision relating to default of Lessee set forth in paragraph 39.4 of this Lease are conditions of this Option;
(iii) All of the Market Base Rental Rate terms and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to where specifically modified by this option shall apply;
(iiv) On January 1, 2007 , the amount monthly rent payable under paragraph 1.5 and 4 of Base Rent, which the attached Lease shall be determined as set forth hereinadjusted by the increase, (ii) options to extend or to expandif any, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout from the renewal term. date this Lease commenced in the C.P.I. As used herein, and subject the term "C.P.I. shall mean the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban Consumers, Los Angeles-Anaheim-Riverside, California (1982/84=100), "All Items", herein referred to as "C.P.I."
a. The monthly rent payable in accordance with paragraph A(iv) of this Addendum shall be calculated as follows: the limitations rent payable for the first month of the term of this Lease, as set forth in this paragraphparagraph 4 of the attached Lease, “Market Base Rental Rate” shall mean be multiplied by a fraction the numerator of which shall be the C.P.I. of the calendar month immediately preceding the effective date of the subject rent escalation, and the denominator of which shall be the C.P.I. for the calendar month in which the original Lease term commenced. The sum so calculated shall constitute the new monthly rent hereunder, but, in no event, shall such new monthly rent be less than 103% of the rent payable for the month immediately preceding the date for rent adjustment.
b. In the event the compilation and/or publication of the C.P.I. shall be discontinued, then the index most nearly the same as the C.P.I. shall be used to make such calculation. In the event that Lessor and Lessee cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the rules of said association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitrators shall be paid equally be Lessor and Lessee.
▇. ▇▇▇▇▇▇ shall notify Lessee of any date rental increases pursuant to this paragraph as soon as practicable after the then annual net relevant C.P.I. figures have been released. Until such notification, Lessee shall continue to pay the rent in effect during the prior rental rate (exclusive period. After notification of real estate taxesa rental increase, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age Lessee shall commence making rental payments in the County of Boulderincreased amount and shall, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty ten (3010) days after such notification, pay to Lessor the date Landlord notifies Tenant amount of any rental increases due for previous months.
B. If this option to extend is exercised, the option term shall commence on January 1, 2007 and shall end on December 31, 2011
C. On January 1 2008, January 1, 2009, January 1, 2010 and again on January 1, 2011 , the monthly rent payable shall be adjusted upward by 3% over the rent payable for the month immediately preceding each rental adjustment. LESSOR: LESSEE: NORTHPARK INDUSTRIAL INTERNATIONAL REMOTE IMAGING SYSTEMS INC. By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE] ----------------------------- ------------------------------- By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE] ----------------------------- ------------------------------- PARKING AGREEMENT This Parking Agreement, dated November 29, 2001 , for reference purposes only, is made by and between NORTHPARK INDUSTRIAL (herein called "Lessor") and INTERNATIONAL REMOTE IMAGING SYSTEMS, INC. (herein called "Lessee"). Lessor leases to Lessee under a separate written Lease the Premises known as ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and the Agreements of the Market Base Rental Rate, objects parties in this Parking Agreement are in addition to the Market Base Rental Rate determined agreements of the parties in said Lease.
1. Subject to the terms and conditions contained in this Agreement, Lessor hereby agrees that Lessee and persons designated by Landlord Lessee may use 21 parking spaces in the Parking Garage located at ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (hereinafter the "Garage"). The parking spaces hereunder shall be provided on an unreserved "first come, first served" basis.
2. The term of this Agreement shall be concurrent with the term of this Lease Agreement ("Lease").
3. Lessee shall at all times comply with all applicable ordinances, rules, regulations, codes, laws, statutes and elects requirements of all federal, state, county and municipal governmental bodies or their subdivisions respecting the use of the Garage. Lessee shall extend all of its insurance policies required under the Lease to submit include vehicles to be parked in the rate determination Garage hereunder and personal property located therein or thereon. Upon request, Lessee shall provide Lessor with certificates or other satisfactory evidence of such insurance. Lessor reserves the right to appraisaladopt, thenmodify, and enforce reasonable Rules governing the use of the Garage from time to time, including any card-key, sticker or other identification or entrance system, and hours of operation. The Rules set forth hereinafter are currently in effect. Lessor may refuse to permit any person who violates such Rules to park in the Garage, and any violation of the Rules shall subject the car to removal from the Garage.
4. Lessee acknowledges receipt of one card-key for each parking space provided. Lessee shall be responsible for the return of said card-key upon its vacancy of the Garage. A replacement fee of $25.00 will be charged for any lost or damaged card-key.
5. Except for intentional acts of gross negligence by Lessor, Lessor shall have no liability whatsoever for any damage to property or any other items located in the Garage, nor for any personal injuries or death arising out of any incident or matter relating to the Garage. In all events, Lessee agrees to look first to its insurance carrier for payment of any losses sustained in connection with Lessee's use of the Garage. Lessee hereby waives on behalf of its insurance carriers all rights of subrogation against Lessor. Lessor reserves the right to assign specific spaces and to reserve spaces for visitors, small cars, handicapped persons and for other lessees, and Lessee and persons designated by Lessee shall not park in any such assigned or reserved spaces. Lessor also reserves the right to close all or any portion of the Garage in order to make repairs or perform maintenance services, or to alter, modify, re-stripe the Garage, or if required by casualty, strike, condemnation, act of God, governmental law or other reason beyond Lessor's reasonable control. In such event, Lessor shall refund any prepaid parking rent hereunder, pro-rated on a per diem basis.
6. Prior to furnishing any card-keys to any person, Lessee shall provide Lessor with a list including all names, type of automobile, year of manufacture, drivers license number and automobile license number for all persons using the Garage at any time.
7. If Lessee shall default under this Agreement, Lessor shall have the right to cancel this Agreement on ten (10) days written notice, unless within such ten (10) day period Lessee cures such default. If Lessee shall default under this Agreement a second time after receiving prior written notice for the same offense, Lessor shall have the right to cancel this Agreement on ten (10) days written notice. Lessor shall have the right to remove from the Garage any vehicles hereunder which are in breach of this Agreement or Rules contained herein, without any liability whatsoever. Accordingly, Lessor may then deactivate the respective card-key(s) with ten (10) days notice as stated above.
8. LESSEE ACKNOWLEDGES RECEIPT OF A COPY OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR NORTHPARK INDUSTRIAL CENTER RECORDED WITH THE COUNTY OF LOS ANGELES AS DOCUMENT NUMBERS 79-760182 AND ▇▇-▇▇▇▇▇▇▇. LESSEE HAS REVIEWED AND APPROVED SAID DOCUMENTS AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS THEREIN. LESSEE FURTHER AGREES THAT SAID COVENANTS, CONDITIONS AND RESTRICTIONS SHALL BE BINDING UPON LESSEE AND ANY SUBLESSEE, SUCCESSOR AND ASSIGNS WHICH THEY MAY HAVE. RULES
a. Lessee agrees to acquaint all persons to whom Lessee assigns parking space of these Rules.
b. Garage hours: Twenty-four (24) hours, seven (7) days of a week.
c. Cars must be parked entirely within the date of Tenant’s objectionstall lines painted on the floor, each party shall appoint a nonand only small cars may be parked in areas reserved for compacts. All cars must be parked head-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to only.
d. All directional signs and arrows must be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser observed.
e. Speed limit shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed5 miles per hour.
f. Parking is prohibited in all areas not expressly designated for parking, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.including without limitation:
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease (International Remote Imaging Systems Inc /De/)
Option to Extend. Provided Tenant shall have an option is not in default under any provision of the Lease, Landlord hereby grants to Tenant two one year options to extend and renew the term of this Lease as to all of the Premises (but not as to any portion or portions thereof) for one (1) an additional term when the existing term expires, on the terms and conditions set forth in this paragraph. Tenant may exercise this option by giving Landlord written notice of five its intention not less than sixty (5) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (27060) days prior to the expiration of the Lease Term (i.e., by September 4, 2007) existing term of its election to exercise the optionthis Lease. If Tenant elects not to extend or fails to timely exercise its option, time being of the essencethis Option is exercised, the option Base Monthly Rent for the Premises shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for equal the then current fair market monthly rent (“Fair Market Base Rental Rate (per rentable square foot per annum, “NNNRent”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand), which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout less than $19,860.00 per month for the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean Premises as of any the commencement date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forthextended term. If Tenant, by written notice delivered no later than thirty the parties cannot agree on the amount of the “Fair Market Rent” and the annual adjustment to such Fair Market Rent within sixty (3060) days after prior to the date Landlord notifies Tenant commencement of such extended term, then the Fair Market Rent and the annual adjustment thereto shall be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the Market Base Rental RateLease, objects shall remain in full force and effect and shall apply during the Option term. If the fair market rental value for the Premises needs to the Market Base Rental Rate be determined by appraisal, Landlord and elects Tenant shall either agree to submit the rate determination to appraisal, then, within seven (7) days select one real estate appraiser or three real estate appraisers. Any real estate appraiser selected shall be a member of the date American Institute of Tenant’s objectionReal Estate Appraisers, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has have at least five (5) years’ full-time years experience appraising commercial appraisal experience space located in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date vicinity of the appointment Premises, and shall act in accordance with the rules of the last appraiserAmerican Institute of Real Estate Appraisers. The Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with the improvements installed therein. If a party does not appoint a qualified only one appraiser within five (5) days after the other party has given notice of the name of the appraiseris selected, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties each party shall pay for the appraiser appointed by it and shall bear one-half of the cost fees and expenses of appointing the third appraiser and of paying that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the third appraiser’s fee. The third appraiser, however If three appraisers are selected, each party shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider bear the criteria above stated in determining fees and expenses of the Market Base Rental Rate. Within twenty (20) days after appraiser it selects and one-half of the selection fees and expenses of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlord.
Appears in 1 contract
Option to Extend. Tenant shall have an the option to extend and renew the Lease initial Term as to all of the entire Premises (but not as to any portion or portions thereof) for one (1) additional term period of five ten (510) years. In order to exercise such optionyears (the "Additional Term"), Tenant shall notify Landlord upon the same terms and conditions then in writing at least two hundred seventy (270) days prior effect with respect to the expiration of the Lease Term Premises, except for Annual Fixed Rent (i.e., by September 4, 2007) of its election to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Renthereinafter defined), which shall be determined as set forth hereinprovided hereinbelow, (ii) options provided that at the time such option to extend or to expand, which is exercised and at the expiration of the initial Term Tenant shall not be applicable, in default under this Lease beyond any applicable notice and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout cure period. Annual Fixed Rent for the renewal term. As used herein, and subject Additional Term payable with respect to the limitations set forth in this paragraph, “Market Base Rental Rate” Premises shall mean as be the greater of any date (i) the then annual net prevailing fair market rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept for the Premises as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objectioncommencement of the Additional Term, each party as determined as hereinafter set forth, or (ii) the Annual Fixed Rent payable by Tenant with respect to the Premises for the last Lease Year during the initial Term. At any time after the date which is thirteen (13) months prior to the Expiration Date and prior to the date which is eleven (11) months prior to the Expiration Date, Tenant may request Landlord to inform Tenant of Landlord's determination of the prevailing fair market rental rate for the Premises which will be in effect for the Additional Term, and in such event Landlord shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after thereafter notify Tenant as to the prevailing fair market rental rate for the Additional Term as of the commencement of the Additional Term, as determined by Landlord ("Landlord's Rent Notice"). If Tenant elects to exercise the option to extend the initial Term of this Lease for the Additional Term, Tenant shall do so by written notice to Landlord ("Tenant's Exercise") given not later than the date which is ten (10) months prior to the Expiration Date or the date which is mutually agreed upon at such time. If Tenant fails to exercise the extension option within the aforesaid time period, Tenant's right to such extension of the appointment Term of this Lease shall expire. Tenant's Exercise shall contain a statement from Tenant that it either accepts or rejects Landlord's determination of the last appraiserprevailing fair market rental rate for the Premises as set forth in Landlord's Rent Notice. If a party does not appoint a qualified appraiser within five (5) days after Tenant rejects Landlord's determination of the other party has given notice of prevailing fair market rental rate for the Premises as set forth in Landlord's Rent Notice, then Tenant's Exercise shall also contain the name of the one appraiser. In such event Landlord shall, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date of Landlord's receipt of Tenant's Exercise, provide Tenant with written notice of a second appraiser. Thereafter, within ten (10) days of Landlord's designation of the second appraiser has been appointedappraiser, they Landlord's and Tenant's respective appraisers shall elect select a third appraiser. Each appraiser meeting shall have had at lease ten (10) years experience in the qualifications stated valuation of commercial real estate and lease transactions in this paragraph within seven the Metropolitan Boston area. Within thirty (730) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiserappraiser as aforesaid, the third appraiser three appraises (by a majority decision or by an average of the three individual determinations if no majority decision is reached) shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established prevailing fair market rental rate for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required Premises for the last full month of the Lease term until the appraisers have made their determinationAdditional Term. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the Such determination of the applicable Market Base Rental Rate prevailing fair market rental rate for the Premises for the Additional Term shall include be conclusive and biding upon Landlord and Tenant. Landlord and Tenant shall each be responsible for the retroactive amounts costs of monthly Base Rent installments accrued their respective appraiser, and unpaid. In no event may either Landlord or and Tenant elect not to extend shall each be responsible fifty percent (50%) of the Lease based upon costs of the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordthird appraiser.
Appears in 1 contract
Sources: Lease (Smtek International Inc)
Option to Extend. Tenant (a) Provided that the conditions set forth in this paragraph 24(a) are satisfied, Subtenant shall have an option the right to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) this Sublease for one (1) additional successive eighteen (18) month term of five (5) years. In order to exercise the “Extension Term”), such optionExtension Term shall commence, Tenant shall notify Landlord in writing if at least two hundred seventy (270) days prior to all, immediately after the expiration of the Lease initial term of this Sublease on the Expiration Date, and shall end on the day prior to the eighteen (18) month anniversary of the commencement of the Extension Term. The Extension Term shall be upon all of the terms and conditions of this Sublease (i.e.other than this paragraph 24(a)), by September 4including, 2007without limitation, the payment of all Rent payable hereunder during the Extension Term. The Base Rent for the Extension Term shall be $6,000.00 per month for the initial six (6) months of its election the Extension Term, and then shall increase to exercise $6,350.00 for the optionbalance of the Extension Term, and Subtenant shall continue to pay all Additional Rent payable hereunder. If Tenant elects not Subtenant’s right to extend or fails the term of this Sublease and exercise any option to timely exercise its optionextend set forth in this paragraph is subject to and contingent upon the full and complete satisfaction by Subtenant of each of the following conditions:
(i) Subtenant shall notify (“Extension Notice”) Sublandlord, time being of the essence, not later than 30 days prior to the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein grantedExpiration Date, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal term. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not that it desires to extend the term of this Sublease. If Subtenant fails to notify Sublandlord by such date, time being of the Lease as provided in the immediately preceding sentenceessence, Tenant Subtenant’s option to extend this Sublease shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice null and void and of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, no further force or effect;
(ii) options to extend or to expand, which Subtenant shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in default under this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, Sublease either at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time it sends the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has Extension Notice or at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, Extension Term; and
(iii) Subtenant occupies the entire Premises for the uses permitted under this Sublease at the time the Extension Notice is received by Sublandlord and for the first Base Rent payment becoming due after the determination duration of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by LandlordExtension Term.
Appears in 1 contract
Sources: Sublease (Monster Worldwide Inc)
Option to Extend. Landlord hereby grants to Tenant shall have an the option to extend and renew the Lease as to all of the Premises (but not as to any portion or portions thereof) this lease for one (1) an additional term of five (5) years, upon the then prevailing rental rate and terms and conditions then offered by Landlord for new leases of comparable space within the Building, provided that Tenant not be in default under this lease at the time that the option is exercised, and at any time from Tenant’s exercise of the option to the commencement date of the extended term. In order This option must be exercised by written notice to exercise Landlord, accompanied by payment of the first month’s rental for the extended term, no later than twelve (12) months prior to the expiration of the original lease term. Landlord shall, on request of Tenant advise Tenant in writing no later than 13 months prior to expiration of the Lease term, of the then prevailing rental rate and terms and conditions operative under this paragraph. The adjusted base rental shall be equal to the then prevailing rental rate for comparable space within the Building; and in no event shall the base rent be less than the rent, as escalated pursuant to the terms of this Lease, due and payable during the last month immediately preceding the commencement date of the extended term. If Tenant disagrees with the rental rate stated in Landlord’s notice, Tenant may give Landlord written notice no later than ten (10) business days following its receipt of Landlord’s notice of its election to have such optionrental rate determined by arbitration, which notice shall state the rental rate suggested by Tenant. Within ten (10) business days after Landlord’s receipt of such notice, Landlord and Tenant shall each appoint an experienced commercial leasing broker, and the appointed brokers shall within three (3) business days after their appointment, jointly appoint a single broker. Each of said brokers shall be informed of the rental rate proposed by Landlord and Tenant, and each of them shall select the rate which he or she deems the prevailing rate within five (5) business days following the selection of the third broker. The rate selected by a majority of the brokers shall be the rate used for the option term. Each party shall pay the fee of the broker selected by such party and one half of the fee of the third broker. If Tenant invokes arbitration, Tenant shall notify Landlord in writing at least two hundred seventy within five (2705) business days prior to after the expiration of the Lease Term (i.e.brokers’ decision is made, by September 4, 2007) of its election whether or not Tenant elects to exercise the option. If Tenant elects not to extend or fails to timely exercise its option, time being of the essence, the option shall automatically terminate and be of no further force and effect and this Lease shall terminate upon the expiration of the initial Term. Upon receipt of such notice from Tenant exercising the renewal option herein granted, Landlord shall submit in writing within thirty (30) days a proposal for the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for the renewal termhereunder. Tenant shall have thirty (30) days from the receipt of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of the Market Base Rental Rate and election to initiate the appraisal process set forth below. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not no right to extend the term of the Lease as provided in the immediately preceding sentence, Tenant shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) beyond the amount of Base Rent, which shall be determined as additional term set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant of the Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days of the date of Tenant’s objection, each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection of the third appraiser, the third appraiser shall determine the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencement, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordabove.
Appears in 1 contract
Sources: Sublease Agreement (PRN Corp)
Option to Extend. A. Landlord grants to Tenant shall have an the option to extend the term of this Lease for two 3-year periods commencing when the prior term expires upon each and renew the Lease as to all of the Premises following terms and conditions:
(but not as i) Tenant gives to any portion or portions thereof) Landlord and Landlord receives notice of the exercise of the option to extend this Lease for one (1) said additional term of five no later than twelve (512) years. In order to exercise such option, Tenant shall notify Landlord in writing at least two hundred seventy (270) days months prior to the expiration of time that the Lease Term (i.e., by September 4, 2007) of its election to exercise option period would commence if the option. If Tenant elects not to extend or fails to timely exercise its optionoption were exercised, time being of the essence. If said notification of the exercise of said option is not so given and received, the this option shall automatically terminate expire;
(ii) At the time said written notification of exercise of option is given and received, Tenant shall not be in default under any of no further force and effect the material obligations of this Lease to be performed by Tenant and this Lease shall terminate upon not have previously terminated nor terminated prior to the expiration commencement of the initial Termoption term;
(iii) All of the terms and conditions of this Lease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows: The rent payable by Tenant during the first option period shall be the Fair Market Rental Value of the Premises (as defined below) at the commencement date of the option period. Upon receipt There shall be an annual C. P.I. increase not to exceed four percent (4%) in each subsequent year of the first option period. The rent in the first year of the second option period shall be the rent in the last year of the first option period to which will be added a C. P.I. increase not to exceed four percent (4%). There shall be an annual C. P.I. increase not to exceed four percent (4%) in each subsequent year of the second option period. All of the C. P.I. increases during the option periods shall be calculated on the basis of the formula provided in the Lease P.5.B. If Landlord and Tenant cannot agree on the Fair Market Rental Value of the Premises for the extension periods within forty-five (45) days after the Tenant has notified Landlord of its exercise of the option, Landlord and Tenant shall each select, within forty-five (45) days of such notice from Tenant exercising notification, an appraiser who must be a qualified M.A.I. appraiser to determine said Fair Market Rental Value. If one party fails to so designate an appraiser within the renewal option herein grantedtime required, Landlord the determination of Fair Market Rental Value of the one appraiser who has been designated by the other party hereto within the time required shall be binding upon both parties. The appraisers shall submit in writing their determinations of Fair Market Rental Value to both parties within thirty (30) days after their selection. If the difference between the two determinations is ten percent (10%) or less of the higher appraisal, then the average between the two determinations shall be the Fair Market Rental Value of the Premises. If said difference is greater than ten percent (10%), then the two appraisers shall within twenty (20) days of the date that the later submittal is submitted to the parties designate a proposal for third appraiser who must also be a qualified M.A.I. appraiser. The sole responsibility of the then current Market Base Rental Rate (per rentable square foot per annum, “NNN”) for third appraiser will be to determine which of the renewal termdeterminations made by the first appraisers is most accurate. Tenant The third appraiser shall have thirty (30) days from the receipt no right to propose a middle ground or any modification of said notice from Landlord to notify Landlord in writing of (i) Tenant’s acceptance either of the proposed Market Base Rental Rate, or (ii) Tenant’s rejection of determinations made by the Market Base Rental Rate and election to initiate the appraisal process set forth belowfirst two appraisers. If Tenant fails to timely accept or reject the Market Base Rental Rate specified in Landlord’s notice or to elect not to extend the term of the Lease as provided in the immediately preceding sentence, Tenant The third appraiser's choice shall be deemed to have elected to extend the Lease Term for the period specified in Tenant’s original notice of exercise of the renewal option at the Market Base Rental Rate specified by Landlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions and covenants of this Lease except as to (i) the amount of Base Rent, which shall be determined as set forth herein, (ii) options to extend or to expand, which shall not be applicable, and (iii) Tenant shall pay Tenant’s Prorata Share of Operating Expenses throughout the renewal term. As used herein, and subject submitted to the limitations set forth in this paragraph, “Market Base Rental Rate” shall mean as of any date the then annual net rental rate (exclusive of real estate taxes, utilities and operating expenses) per square foot of net rentable area which a willing landlord under no compulsion would agree to accept as of such date, and which a willing tenant under no compulsion would agree to accept as of such date, under renewal leases (based on a five (5) year term) of space in comparable first class multi-tenant office buildings of comparable size, location and age in the County of Boulder, Colorado, at such time, taking into account all relevant factors, including, without limitation, use, location and/or floor level parties within the applicable building, definition of rentable area, leasehold improvements provided, credits or allowances granted, if any, quality, age and location of the applicable building, rental concessions, the time the particular rate under consideration became effective, size of tenant, credit of tenant, relative operating expenses, taxes and utilities, relative services provided, and so forth. If Tenant, by written notice delivered no later than thirty (30) days after the date Landlord notifies Tenant his or her selection. Such determination shall bind both of the parties and shall establish the Fair Market Base Rental Rate, objects to the Market Base Rental Rate determined by Landlord and elects to submit the rate determination to appraisal, then, within seven (7) days Value of the date of Tenant’s objection, each Premises. Each party shall appoint a non-affiliated certified M.A.I. Appraiser that has at least five (5) years’ full-time commercial appraisal experience in Boulder County to determine the Market Base Rental Rate, such process to be completed within twenty (20) days after the date of the appointment of the last appraiser. If a party does not appoint a qualified appraiser within five (5) days after the other party has given notice of the name of the appraiser, then the single appraiser shall be the sole pay for their own appraiser and shall set the Market Base Rental Rate. The appraisers appointed by the parties shall meet promptly and attempt to set the Market Base Rental Rate. If they are unable to agree on the Market Base Rental Rate within twenty (20) days after the date the second appraiser has been appointed, they shall elect a third appraiser meeting the qualifications stated in this paragraph within seven (7) days after the last day the two (2) appraisers are to set the Market Base Rental Rate. If the appraisers are unable to agree on the third appraiser, either pay an equal share of the parties to this Lease, after giving five (5) days’ prior written notice to the other party, may apply to the then president of the real estate board of Denver, Colorado for the selection of a third appraiser who meets the qualifications stated in this Section, which selection shall be made within three (3) days. All determinations of Market Base Rental Rate shall be subject to the limitations on Market Base Rental Rate set forth in the first paragraph of this Section. Each of the parties shall pay for the appraiser appointed by it fees and shall bear one-half of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The appraisers shall be instructed to consider the criteria above stated in determining the Market Base Rental Rate. Within twenty (20) days after the selection expenses of the third appraiser. Fair Market Rental Value for purpose of this Lease shall mean the then prevailing rent for premises comparable in size, quality, and orientation to the demised Premises, located in buildings comparable in size to, and in the general vicinity of, the third appraiser shall determine building which the Market Base Rental Rate and all three of the appraiser’s Market Base Rental Rates shall be averaged excluding any single Market Base Rental Rate which is either ten percent (10%) higher or lower than the middle appraisal of Market Base Rental Rate and the remaining appraisals shall then be averaged. If the Market Base Rental Rate is not established for the extended term prior to its commencementdemised Premises are located, Tenant shall continue to pay the applicable Base Rent required for the last full month of the Lease term until the appraisers have made their determination. The Market Base Rental Rate in question, when finally determined by the appraisers, shall be retroactive leased on terms comparable to the commencement of the extension term, and the first Base Rent payment becoming due after the determination of the applicable Market Base Rental Rate shall include the retroactive amounts of monthly Base Rent installments accrued and unpaid. In no event may either Landlord or Tenant elect not to extend the Lease based upon the Market Base Rental Rate established terms contained in accordance herewith. This option to extend may not be exercised and the Lease shall not be extended if Landlord has given Tenant notice of default which default is not cured within any applicable cure periods or waived by Landlordthis Lease.
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