Option to Purchase the Premises. Provided Tenant is not in default under the terms of this Lease, Tenant shall have the option to purchase the ground leasehold interest and improvements in and to the Premises after the 12th year anniversary of the Full Rent Commencement Date. The option price shall be the greater of (i) Fair Market Value [defined herein] of the Premises when the option is exercised or (ii) an amount equal to the Annual Rent when the option is exercised divided by a capitalization rate of 5.5%. Tenant shall provide ninety (90) days prior written notice to Landlord of its desire to exercise this option. Once exercised, Tenant shall use its reasonable best efforts to close on the property (90) days from the date of the notice but no later than 120 days from the date of the notice. Tenant shall be responsible to pay, in addition to the option price, all of Landlord’s prepayment penalties and fees, swap termination fees, in connection with any existing mortgage loan. Tenant shall pay all transfer taxes due as a result of this Option to Purchase. For purposes herein the Fair Market Value shall be the then fair market value for similar space in buildings in the Capital District (the “Market Area”) (with similar tenant improvements and tenants of similar credit worthiness), which Fair Market Value shall be determined as follows: (a) The Fair Market Value (“Market Value”) shall be proposed by Landlord in good faith within twenty (20) days after receipt of Tenant’s notice that it intends to exercise its option to purchase the Premises (the “Landlord’s Proposed Market Value”). ▇▇▇▇▇▇▇▇’s Proposed Market Value shall be the Market Value unless Tenant notifies Landlord, within twenty (20) days of Tenant’s receipt of Landlord’s Proposed Market Value, that Landlord’s Proposed Market Value is not satisfactory to Tenant (“Tenant’s Rejection Notice”). (b) If Tenant delivers Tenant’s Rejection Notice and the Market Value is not otherwise agreed upon by Landlord and Tenant within forty (40) days after ▇▇▇▇▇▇▇▇’s receipt of Tenant’s notice that it intends to exercise its option to purchase the Premises, then the Market Value shall be determined by the following appraisal procedures: 1. Within ten (10) days of the expiration of said forty (40) day period Tenant and Landlord shall give each other notice which shall specify the name and address of the Qualified Appraiser (as defined below) designated by such party (the “Tenant’s Appraisal Notice” and the “Landlord’s Appraisal Notice”). If a party (the “Non-Designating Party”) shall fail to timely give to the other party (the “Designating Party”) such written notice of its designated Qualified Appraiser, then the Designating Party shall send a written notice to the Non-Designating Party stating that, if the Designating Party shall not receive a written notice from the Non-Designating Party of its Qualified Appraiser within seven (7) days following the date of said notice to the Non-Designating Party, then the determination of Market Rent by the designated Qualified Appraiser of the Designating Party shall be the Market Rent for the applicable Extended Term and be conclusive and binding on Landlord and Tenant. Such two Qualified Appraisers shall, within thirty (30) days after the designation of the Qualified Appraisers, make their determinations of the Market Value in writing and give notice thereof to each other and to Landlord and Tenant. Such two (2) Qualified Appraisers shall have thirty (30) days after the receipt of notice of each other’s determination to confer with each other and to attempt to reach agreement as to the determination of the Market Value. If such Qualified Appraisers shall concur in their determination, they shall give notice thereof to Landlord and Tenant and the amount agreed to by both Qualified Appraisers shall be final and binding upon Landlord and Tenant. If such Qualified Appraisers shall fail to concur as to such determination within said thirty (30) day period, they shall give notice thereof to Landlord and Tenant, and thereafter the two (2) Qualified Appraisers shall immediately designate a third Qualified Appraiser. If the two Qualified Appraisers shall fail to agree upon the designation of such third Qualified Appraiser within ten (10) days after said thirty (30) day period, then they or either of them shall give notice of such failure to agree to Landlord and Tenant, and if Landlord and Tenant fail to agree upon the selection of such third Qualified Appraiser within ten (10) days after the Qualified Appraiser(s) appointed by the parties give notice as aforesaid, then either party on behalf of both may apply to the American Arbitration Association or any successor thereto, or on his or her failure, refusal or inability to act, to a court of competent jurisdiction, for the designation of such third Qualified Appraiser. 2. For purposes of this Lease, a “Qualified Appraiser” shall be an independent real estate appraiser or consultant who shall be a current member of either a member of either M.A.I. or A.S.R.E.C., and have had at least ten (10) years continuous experience in the business of appraising commercial real estate similar to the Property in the Market Area where the Property is located. 3. The third Qualified Appraiser shall conduct such hearings and investigations as he or she may deem appropriate and shall, within ten (10) days after the date of his or her designation, make a determination of the Market Value in writing and give notice thereof to the other Qualified Appraisers and to Landlord and Tenant (i.e., there shall be three determinations of Market Value). The Market Value shall be the average of the two determinations that are closest in value. Each party shall pay fees, costs and expenses of the Qualified Appraiser selected by it, its own counsel fees, and one-half (1/2) of all other expenses and fees of any such appraisal.
Appears in 1 contract
Sources: Sublease Agreement (Plug Power Inc)
Option to Purchase the Premises. Provided Tenant is not in default under the terms of this Lease, Tenant shall have the option to purchase the ground leasehold interest and improvements in and to the Premises after the 12th year anniversary of the Full Rent Commencement Date. The option price shall be the greater of (i) Fair Market Value [defined herein] of the Premises when the option is exercised or (ii) an amount equal to the Annual Rent when the option is exercised divided by a capitalization rate of 5.5%. Tenant shall provide ninety (90) days prior written notice to Landlord of its desire to exercise this option. Once exercised, Tenant shall use its reasonable best efforts to close on the property (90) days from the date of the notice but no later than 120 days from the date of the notice. Tenant shall be responsible to pay, in addition to the option price, all of Landlord’s prepayment penalties and fees, swap termination fees, in connection with any existing mortgage loan. Tenant shall pay all transfer taxes due as a result of this Option to Purchase. For purposes herein the Fair Market Value shall be the then fair market value for similar space in buildings in the Capital District (the “Market Area”) (with similar tenant improvements and tenants of similar credit worthiness), which Fair Market Value shall be determined as follows:
(a) The Fair Market Value (“Market Value”) shall be proposed by Landlord in good faith within twenty (20) days after receipt of Tenant’s notice that it intends Lessor hereby grants to exercise its the Lessee an option to purchase the Premises (during the “Landlord’s Proposed Market Value”)term of this Lease Agreement as extended by the option periods contained herein, in whole but not in part, on the terms and conditions set forth in this Section. ▇▇▇▇▇▇▇▇’s Proposed Market Value shall be The Lessee may purchase the Market Value unless Tenant notifies LandlordPremises only on the dates and at the prices contained in Exhibit I hereto; provided, within twenty (20) days of Tenant’s receipt of Landlord’s Proposed Market Valuehowever, that Landlord’s Proposed Market Value is not satisfactory in no event shall the purchase price be less than the amount necessary to Tenant prepay the Bonds in whole upon such exercise and to pay all costs incurred by the Lessor and the Trustee as set forth in (“Tenant’s Rejection Notice”).g) below. The Lessee agrees to pay the difference, if any, between the purchase price set forth in Exhibit I and the amount required to prepay the Bonds and the costs incurred by the Lessor and the Trustee as forth in (g) below;
(b) If Tenant delivers Tenant’s Rejection Notice and the Market Value is not otherwise agreed upon by Landlord and Tenant within forty (40) days after ▇▇▇▇▇▇▇▇’s receipt of Tenant’s notice that it intends to exercise its option to purchase the Premises, then the Market Value The Lessee shall be determined by the following appraisal procedures:
1. Within ten (10) days of the expiration of said forty (40) day period Tenant and Landlord shall give each other notice which shall specify the name and address of the Qualified Appraiser (as defined below) designated by such party (the “Tenant’s Appraisal Notice” and the “Landlord’s Appraisal Notice”). If a party (the “Non-Designating Party”) shall fail to timely give to the other party (the “Designating Party”) such written notice of its designated Qualified Appraiser, then the Designating Party shall send a provide written notice to the Non-Designating Party stating that, if Lessor and the Designating Party shall not receive a written notice from the Non-Designating Party Trustee of its Qualified Appraiser within seven (7) intent to purchase the Premises no later than 270 days following the date of said notice prior to the Non-Designating Party, then scheduled purchase date;
(c) Within 30 days prior to the determination of Market Rent by the designated Qualified Appraiser of the Designating Party shall be the Market Rent for the applicable Extended Term and be conclusive and binding on Landlord and Tenant. Such two Qualified Appraisers shall, scheduled purchase date or within thirty (30) days after the designation purchase price has been determined, whichever is later, the Lessee shall deposit or cause to be deposited with the Trustee or with an independent major escrow company mutually acceptable to the Lessor and the Lessee the purchase price of the Qualified AppraisersPremises as set forth on Exhibit I hereto, make their determinations of together with the Market Value Rental Payments that will accrue hereunder to the purchase date and the costs incurred by the Lessor and the Trustee in writing and give notice thereof to each other and to Landlord and Tenant. Such two connection with the purchase;
(2d) Qualified Appraisers shall have thirty Within fifteen (3015) days after of the receipt of notice of each other’s determination to confer with each other the purchase price from the Lessee, the Lessor, the Lessee and to attempt to reach agreement as the Trustee (to the determination of extent the Market Value. If such Qualified Appraisers shall concur in their determination, they shall give notice thereof to Landlord and Tenant and the amount agreed to by both Qualified Appraisers shall be final and binding upon Landlord and Tenant. If such Qualified Appraisers shall fail to concur as to such determination within said thirty (30) day period, they shall give notice thereof to Landlord and Tenant, and thereafter the two (2) Qualified Appraisers shall immediately designate a third Qualified Appraiser. If the two Qualified Appraisers shall fail to agree upon the designation of such third Qualified Appraiser within ten (10) days after said thirty (30) day period, then they Bonds or either of them shall give notice of such failure to agree to Landlord and Tenantrefunding Bonds are still outstanding, and if Landlord not, with an independent major escrow company acceptable to the Lessor and Tenant fail the Lessee) shall cause to agree upon be established an escrow account with an escrow company acceptable to the selection Lessor and the Lessee to facilitate the purchase of such third Qualified Appraiser within ten (10) days after the Qualified Appraiser(s) appointed Premises by the parties give notice as aforesaid, then either party on behalf of both may apply Lessor. The Lessor shall deposit or cause to be deposited with the escrow company a recordable grant deed conveying title to the American Arbitration Association or Premises to the Lessee effective on the purchase date and any successor theretoother documents necessary to accomplish the purchase of the Premises;
(e) To the extent that any Bonds are to be prepaid concurrently with such purchase, or on his or her failure, refusal or inability to act, to a court of competent jurisdiction, for the designation of such third Qualified Appraiser.
2. For purposes of this Lease, a “Qualified Appraiser” Lessee and the Lessor shall be an independent real estate appraiser or consultant who shall be a current member of either a member of either M.A.I. or A.S.R.E.C.take, and have had at least ten the Lessor shall cause the Trustee to take, all actions necessary to accomplish such prepayment under the documents pursuant to which the Bonds were issued and delivered;
(10f) years continuous experience in Concurrently with the business close of appraising commercial real estate similar escrow, the Lessor shall provide or cause to be provided to the Property Lessee an ALTA owner’s policy of title insurance, in form and from a title insurance company acceptable to the Market Area where Lessee, insuring the Property is located.
3. The third Qualified Appraiser shall conduct such hearings record title of the Premises in an amount equal to the applicable purchase price, free and investigations clear of all adverse claims and encumbrances, other than any covenants, conditions, reservations, easements, rights and rights of way of record as he or she may deem appropriate and shall, within ten (10) days after of the date of his execution of this Lease Agreement; and
(g) The Lessee agrees and covenants to pay all reasonable and customary costs and charges incurred by the Lessor and the Trustee, including the cost of title insurance, any transfer or her designation, make a determination of the Market Value in writing and give notice thereof to the other Qualified Appraisers and to Landlord and Tenant (i.e., there shall be three determinations of Market Value). The Market Value shall be the average of the two determinations that are closest in value. Each party shall pay recordation fees, escrow fees, reasonable broker or sales commission and the costs and expenses of all employees, agents, consultants and attorneys retained by the Qualified Appraiser selected by itLessor and the Trustee, its own counsel fees, in connection with the Lessee’s purchase of the Premises and one-half (1/2) the prepayment of all other expenses and fees of any such appraisalthe Bonds.
Appears in 1 contract
Sources: Lease Agreement