Second Option to Extend. Provided Tenant has extended the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an Option to Extend ("Second Option to Extend") this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between the date of execution of this Lease and the Lease Commencement Date (the "Build-Out Period") except to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration as of the date of execution of this Lease), in which event such portion of the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions; A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended Term, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45. B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 2 contracts
Sources: Lease Agreement (Alza Corp), Lease Agreement (Alza Corp)
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Original Maturity Date of the Note shall have been extended in accordance with the terms and provisions of this Agreement, Borrower shall have the option to further extend the term of the Loan to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
("a) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend"Extend not more than ninety (90) this Lease for an additional term equal days but not less than thirty (30) days prior to nine the First Extended Maturity Date; and
(9b) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the date First Extended Maturity 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
(c) Borrower shall execute or cause the execution of this Leaseall documents reasonably required by Lender to exercise the Second Option to Extend and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender; and
(d) There shall have occurred no material adverse change, as reasonably determined by Lender, in the financial condition of Borrower, any Guarantor, or any Indemnitor from that which existed as of the later of: (A) the Effective Date; or (B) the date upon which the financial condition of such party was first represented to Lender; and
(e) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of one-fifth of one percent (0.20%) of the total commitment amount of the Loan (whether disbursed or undisbursed), as determined on the First Extended Maturity Date; and
(f) If Borrower has commenced construction of the Renovation Improvements, the sum of the undisbursed proceeds of the Loan, plus Borrower’s Funds on deposit in which event such the Borrower’s Funds Account, plus any Borrower’s Retained Funds shall be sufficient to pay all costs to achieve Stabilization of the B-1Building; and
(g) The Debt Yield shall be not less than eleven percent (11%); provided, however, that Borrower shall have the right to repay a portion of the Build-Out Period which has been so determined not outstanding principal balance of the B-2/B-3 Sublimit in order to be includible for Proposition 13 satisfy the foregoing condition. For purposes shall not be deducted from such nine year and eleven month term (as so calculatedof calculating the Debt Yield, the "Second Extended Term") on the following terms and conditions;
A. Tenant “Reference Date” shall give Landlord written notice of Tenant's exercise of be June 30, 2014. Except as modified by this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that Agreement and the Basic Rent other Loan Documents as modified and approved by Lender shall be adjusted as set forth below remain unmodified and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for effect; provided that, upon written notice to Borrower, Lender may, in its sole and absolute discretion, require Borrower to commence amortization of principal under the full remaining Lease TermLoan on a monthly basis, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall with such payments of principal to be adjusted based paid on annual adjustments in the CPI each date on which payment of interest is due in an identical manner amount sufficient to that provided repay in Paragraph 44 above with respect to full the First Extended Term, with the first adjustment during the Second Extended Term to be effective as then outstanding principal balance of the date Loan assuming, for purposes of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the calculating such monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1amortization, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year an amortization period of the Second Extended Termthirty (30) years, after adjustment, be less than the monthly Basic Rent in effect at the expiration (ii) a rate of the prior one interest equal to five and one-half percent (1) year period5.5%), and (iiiii) equal monthly payments of principal and interest. Notwithstanding anything to the contrary, if Lender required Borrower to commence amortization payments in connection with the First Option to Extend, then the foregoing shall not be applicable; provided, Lender may require Borrower to continue making amortization payments, in the event the CPI declines in one year from the immediately preceding year CPI amounts and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1dates, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided required in Paragraph 44 above as to connection with the First Extended Term, and the provisions thereof relating Option to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended TermExtend.
Appears in 2 contracts
Sources: Building Loan Agreement, Building Loan Agreement (Thomas Properties Group Inc)
Second Option to Extend. Provided Tenant has extended The option to extend the Lease for an additional ten First Extended Maturity Date to the Second Extended Maturity Date (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an Option to Extend ("“Second Option to Extend"”) this Lease shall be approved by Lender in its sole discretion. In order for an additional term equal the Lender to nine (9) years and eleven (11) months reduced day for day by consider such extension, the Sponsor must satisfy each of the following conditions precedent in Lender’s sole discretion:
(i) any Early Occupancy Period Sponsor shall provide written Notice of its request to Lender to approve the Second Option to Extend at least 60 days, but no more than 90 days, prior to the First Extended Maturity Date, which Notice shall be supplemented by such additional information as provided Lender may reasonably require to determine, in Paragraph 2C aboveits sole discretion, and whether the conditions set forth in this Section 2.3.2 have been satisfied;
(ii) Sponsor shall pay (a) the period between Extension Fee to Lender together with the date of execution of this Lease and the Lease Commencement Date Notice delivered pursuant to clause (the "Build-Out Period"i) except above (provided, that if Sponsor elects to the extent that legal counsel for Tenant delivers withdraw its Notice delivered pursuant to Landlord and Tenant clause (i) above prior to the exercise Lender’s approval of the Second Option to Extend, a legal opinion then Lender shall reimburse Sponsor for the Extension Fee) and (b) all of Lender’s and Servicer’s reasonable costs and expenses (including, without limitation, Attorneys’ Fees and Costs) incurred in connection with the requested extension prior to the effect that First Extended Maturity Date;
(iii) Sponsor shall provide to Lender all documents in connection with the requested extension as Lender shall require, in its sole discretion;
(iv) no Potential Default or some portion Event of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation Default shall have occurred and then be continuing under this Agreement, or any of the overall maximum term Loan Documents;
(v) no Potential Affiliate Borrower Default or Affiliate Borrower Default shall have occurred and be continuing under any Affiliate Borrower Credit Agreement or any of this Lease the Affiliate Borrower Loan Documents.
(which term was to vi) Borrower shall be in all events less than 35 years compliance with the Sublimits;
(vii) Each Affiliate Borrower shall be in duration compliance with the Sublimits as set forth in such Affiliate Borrower Credit Agreement; and
(viii) The representations and warranties set forth in Section 7 shall be true and correct as of the date of execution of this Lease), in which event such portion Sponsor’s Notice to Lender requesting the extension and as of the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, effective date of the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior to the expiration date extension of the First Extended TermMaturity Date. If, in which event this Lease its sole discretion, the Lender approves the Second Option to Extend, then the Net Spread applicable for any Borrowing Advance Tranche shall be extended for redetermined by Lender in its sole discretion in accordance with Section 4.2.3 hereof. Lender, Borrower and Sponsor shall evidence the Second Extended Term on all of Maturity Date and applicable Net Spread pursuant to this Section 2.3.2 by executing a confirmation substantially in the terms and conditions of this Leaseform attached hereto as Schedule 2.3. If the Lender does not approve the Second Option to Extend, except that the Basic Rent entire Indebtedness shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based payable on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended TermMaturity Date.
Appears in 2 contracts
Sources: Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc)
Second Option to Extend. Provided Tenant has extended Borrower shall have the Lease for an additional ten option to extend the term of the Loan from the First Extended Maturity Date to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
(10a) year period as set forth in Paragraph 44 above, Landlord hereby grants Borrower shall provide Administrative Agent with written notice of Borrower’s request to Tenant an exercise the Second Option to Extend not more than one hundred twenty ("Second Option 120) days but not less than forty-five (45) days prior to Extend"the First Extended Maturity Date;
(b) this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the date of First Extended Maturity Date, no Default nor Potential Default shall have occurred and be continuing, and Borrower shall so certify in writing;
(c) Borrower shall execute or cause the execution of this Lease), in which event such portion of all documents reasonably required by Administrative Agent to exercise the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior and shall deliver to the expiration date of the First Extended TermAdministrative Agent, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Administrative Agent;
(d) There shall have occurred no material adverse change, as determined by Administrative Agent in its reasonable discretion, in the financial condition of Borrower or any Guarantor from that which event this Lease shall be extended for existed on the Second Extended Term on all of the terms and conditions of this Lease, except that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant Effective Date;
(e) Borrower shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for previously extended the full remaining Lease Term, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in Maturity Date from the CPI in an identical manner to that provided in Paragraph 44 above with respect Original Maturity Date to the First Extended TermMaturity Date pursuant to and in accordance with Section 2.10 hereof;
(f) Borrower shall have provided Administrative Agent evidence reasonably satisfactory to Administrative Agent that not less than eighty-five percent (85%) of the net rentable square feet of the Improvements comprised within the Property and Improvements (exclusive of the space occupied or leased by Macy’s and Dillard’s) are leased pursuant to Approved Leases, with the first adjustment during the Second Extended Term to be effective tenants in occupancy of their respective leased premises thereunder;
(g) The Property and Improvements shall have achieved a Debt Service Coverage Ratio of not less than 1.15:1.0 as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of Determination Date immediately preceding the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024Maturity Date; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from Property and Improvements do not meet such Debt Service Coverage Ratio, then Borrower may pay down the immediately preceding year CPI and then escalates outstanding principal balance of the following year, the following year's CPI increase shall be the net increase over the prior two year period (Loan on or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to before the First Extended TermMaturity Date such that said Debt Service Coverage Ratio may be met, and the provisions thereof relating any principal balance reduction by Borrower pursuant to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.this Section 2.11
Appears in 1 contract
Sources: Loan Agreement (Howard Hughes Corp)
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Original Maturity Date of the Note shall have been extended in accordance with the terms and provisions of this Agreement, Borrower shall have the option to further extend the term of the Loan to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
("a) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend"Extend not more than ninety (90) this Lease for an additional term equal days but not less than thirty (30) days prior to nine the First Extended Maturity Date; and
(9b) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the date First Extended Maturity 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
(c) Borrower shall execute or cause the execution of this Lease)all documents reasonably required by Lender to exercise the Second Option to Extend; and
(d) On the First Extended Maturity Date, the aggregate outstanding principal balance of the Loan, and all interest accrued thereon, must be no greater than 50% of the initial amount of the Loan; and
(e) There shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower or any Guarantor from that which event such portion existed as of the Build-Out Period later of: (A) the date hereof; or (B) the date upon which has been so determined not the financial condition of such party was first represented to be includible for Proposition 13 purposes Lender; and
(f) On the First Extended Maturity Date, Borrower shall not be deducted from such nine year pay to Lender an extension fee in the amount of Five Thousand and eleven month term no/100ths Dollars ($5,000); and
(g) KBS REIT remains Effective as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of described in 3.1(d). Except as modified by this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that Agreement and the Basic Rent other Loan Documents as modified and approved by Lender shall be adjusted as set forth below remain unmodified and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45effect.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Second Option to Extend. Provided Tenant has extended the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an Option to Extend ("Second Option to Extend") this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between the date of execution of this Lease and the Lease Commencement Date (the "Build-Out Period") except to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise Upon written request of the Second Option Borrower given to ExtendLender not less than 30 days and not more than 60 days before the First Extended Maturity Date of Construction Note, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in Lender will extend the calculation Maturity Date of the overall maximum term Construction Note to June 1, 2016 (“Second Extended Maturity Date of this Lease Construction Note”), provided that as of the First Extended Maturity Date of the Construction Note, all of the following conditions precedent have been satisfied:
(which term was to a) No Event of Default and no other event or condition which, upon the giving of notice or the passage of time, or both, would become an Event of Default, shall have occurred and be in all events less than 35 years in duration continuing, as of the date of execution the request for extension or as of the extension of the Maturity Date;
(b) Borrower shall have repaid the Construction Note in an amount sufficient to reduce the outstanding principal balance to an amount not to exceed $ ;
(c) All Capital Contributions required to be made under Exhibit E of this Lease), in which event such portion of the Build-Out Period which has Agreement have been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditionsmade;
A. Tenant (d) The Loans are In Balance, as determined by the Lender;
(e) Completion has occurred;
(f) The Extension Fee and all other amounts due to Lender shall give Landlord written notice of Tenant's exercise of have been paid by Borrower to Lender;
(g) All representations and warranties made by the Borrower in this Second Option to Extend not later than twelve months prior to Agreement and the expiration date of the First Extended Term, in which event this Lease other Loan Documents shall be extended for the Second Extended Term materially true and correct as if made on all of the terms and conditions of this Lease, except that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement the extension of such Maturity Date;
(h) There shall have been no Material Adverse Occurrence, as determined by Lender, in Lender’s sole discretion;
(i) Borrower and Guarantor shall have executed and delivered to Lender an amendment to the Construction Note and such other documents as Lender may reasonably require in connection with such extension, all of which shall be in form and substance acceptable to Lender;
(j) Borrower, at its sole cost and expense, shall have delivered to Lender an endorsement to (or reissuance of) the existing Title Policy, bringing current the effective date of the coverage, stating that the coverage afforded by the Title Policy shall not be affected because of the extension and insuring that there have been no additional liens or other additional exceptions to title against the Project from and after the date hereof, unless consented to in writing by Lender;
(k) Not fewer than ninety percent (90%) of the residential units within the Project shall have been lease to, and occupied by, residential tenants under leases executed by Borrower in accordance with this Agreement;
(l) The Debt Service Coverage Ratio for the Project shall not exceed 1.15 to 1.00, as determined by Lender, in Lender’s sole and absolute discretion;
(m) Borrower shall have provided to Lender projections, operating statements, current leasing reports and rent rolls as required by Lender, demonstrating that the Conditions to Conversion can be reasonably achieved prior to the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term Construction Note Maturity Date (as determined by Lender, in its sole discretion;
(n) Borrower shall be calculated by adding have delivered to Lender such amendments to the monthly Basic Rent during the last month Loan Documents as Lender may reasonably require to reflect such extension of the First Extended Term an amount calculated such Maturity Date; and
(o) Borrower shall have delivered to Lender all other documents, instruments, agreements, certificates and opinions of counsel reasonably required by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase Lender in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and connection with such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Termextension.
Appears in 1 contract
Sources: Indenture
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as First Option to Extend set forth in Paragraph 44 aboveSection 3.6 and the Mandatory Conversion Date shall have been extended to the First Extended Mandatory Conversion Date in accordance with the terms and provisions of this Agreement, Landlord hereby grants Borrower shall have the option to Tenant an extend the First Extended Mandatory Conversion Date to the Second Extended Mandatory Conversion Date, upon satisfaction of the following conditions precedent:
(a) Borrower shall provide Bondowner Representative with written notice of Borrower’s request to exercise the Second Option to Extend not more than ninety ("Second Option 90) days but not less than thirty (30) days prior to Extend"the First Extended Mandatory Conversion Date; and
(b) this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the First Extended Mandatory Conversion Date, no Default shall have occurred, 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.
(c) Borrower shall pay to Bondowner Representative an extension fee of equal to 0.125% of the total commitment amount of the Loan (whether disbursed or undisbursed), as determined by Bondowner Representative on the Second Extended Mandatory Conversion Date;
(d) Borrower shall execute or cause the execution of all documents reasonably required by Bondowner Representative to exercise the Second Option to Extend and shall deliver to Bondowner Representative, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Bondowner Representative;
(e) There shall have occurred no material adverse change, as determined by Bondowner Representative in its sole discretion, in the financial condition of Borrower, General Partner, or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) the date upon which the financial condition of such party was first represented to Bondowner Representative;
(f) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the Subordinate Loans and all Subordinate Loan Documents are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document which could have a material adverse effect upon the Property, the Improvements, or the repayment of the Loan; or if there is any such event or condition, the same shall be fully disclosed to Bondowner Representative and Bondowner Representative shall have approved of the extension of the First Extended Mandatory Conversion Date despite the same, such approval to be granted or withheld in Bondowner Representative’s sole discretion;
(g) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the HUD Documents and the AHAP Contract are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document;
(h) Borrower shall have provided evidence satisfactory to Bondowner Representative of Borrower’s continued compliance with TCAC achievement dates, including Borrower’s ability to meet the TCAC placed-in-service date;
(i) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that, as of the First Extended Mandatory Conversion Date, no default has occurred under any of the Partnership Documents and that the Partnership Documents and the Investor Limited Partner’s obligations to make capital contributions thereunder are unamended and in full force and effect;
(j) The construction of the Project shall be one hundred percent (100%) complete and lien free, as evidenced by Bondowner Representative’s receipt of a mechanic’s lien free endorsement to the Title Policy, a recorded notice of completion, a certificate of occupancy and any other licenses, consents or permits from Governmental Authorities that are necessary to permit lawful residential occupancy of all of the units in the Project and a true copy thereof delivered to Bondowner Representative;
(k) If necessary, Borrower shall have extended to a date not earlier than thirty (30) days after the Second Extended Mandatory Conversion Date the applicable expiration date of execution of this Lease)any commitment with respect to the earliest date on which Investor Limited Partner shall be permitted to withdraw from the Borrower under the Partnership Documents, and Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that such commitments are in which event such portion full force and effect and no defaults have occurred thereunder;
(l) Borrower shall have delivered to Bondowner Representative written evidence satisfactory to Bondowner Representative showing that (i) not less than ninety-five percent (95%) of the BuildUnits within the Project have been leased to third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents, and (ii) not less than ninety-Out Period which five percent (95%) of the Units within the Project have been occupied by third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents;
(m) The balance in the interest reserve as of the First Extended Mandatory Conversion Date, as may be supplemented by Borrower, shall be sufficient to pay interest on the Loan until the Second Extended Mandatory Conversion Date as determined by Bondowner Representative; and
(i) CCRC’s commitment to purchase the Bonds in the Permanent Loan Amount as of the Conversion Date, pursuant to the terms of the Bond Purchase Agreement, shall remain in full force and effect, and (ii) Borrower shall have delivered evidence satisfactory to Bondowner Representative that the date of expiration of CCRC’s obligations under the Bond Purchase Agreement has been so determined extended to a date that is not earlier than the Second Extended Mandatory Conversion Date. ///[BANK AND CCRC TO SUPPLEMENT THIS CONDITION UPON FURTHER REVIEW]/// Upon extension of the First Extended Mandatory Conversion Date to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculatedthe Second Extended Monthly Conversion Date pursuant to this Section 3.7, the "date upon which the required pay down of the Note to reduce the Note to the Permanent Loan Amount must occur shall be extended to the date of the Second Extended Term") on Mandatory Conversion Date, and the following terms and conditions;
A. Tenant maturity date of the Note shall give Landlord written notice of Tenant's be unaffected. Except as modified by the exercise of this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that Loan Agreement and the Basic Rent other Loan Documents as modified and approved by Bondowner Representative shall be adjusted as set forth below remain unmodified and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45effect.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Loan Agreement
Second Option to Extend. Provided Tenant has extended Borrower shall have the Lease for an additional ten option to extend the term of the Loan from the First Extended Maturity Date to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
(10a) year period as set forth in Paragraph 44 above, Landlord hereby grants Borrower shall provide Lender with written notice of Borrower’s request to Tenant an exercise the Second Option to Extend at least forty-five ("Second Option 45) days prior to Extend"the First Extended Maturity Date;
(b) this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the date First Extended Maturity 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;
(c) Borrower shall execute or cause the execution of this Lease), in which event such portion of all documents reasonably required by Lender to exercise the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender;
(d) Guarantor shall have confirmed that it remains in compliance with the expiration date financial covenants in the Guaranty;
(e) On the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of one quarter of one percent (0.25%) of the total commitment amount of the Loan (whether disbursed or undisbursed), as determined on the First Extended Maturity Date;
(f) At Lender’s option, Lender shall have received a written appraisal dated within 90 days of the First Extended TermMaturity Date and prepared, at Borrower’s expense, in which event this Lease shall conformance with the requirements of the Comptroller of the Currency confirming to the satisfaction of Lender that the Loan-to-Value Ratio (with “value” deemed to be extended for the Second Extended Term on all Extension Appraised Value) does not exceed seventy-five percent (75%); provided, however, if the Loan-to-Value Ratio exceeds seventy-five percent (75%), then Borrower may pay down the outstanding principal balance of the Loan in an amount sufficient to reduce the Loan-to-Value Ratio to an amount not greater than seventy-five percent (75%). Any amounts repaid may not be reborrowed;
(g) Lender shall have received a Down-Date Endorsement pursuant to Procedural Rule P-9b(4), and the other endorsements amending the mechanic’s lien and materialmen’s lien coverage and, if applicable, deleting the pending disbursements clause pursuant to Procedural Rule P-8b(2), and, if applicable, a Form T38 Endorsement pursuant to Procedural Rule P-9b(3) to the Title Policy in form and content satisfactory to Lender;
(h) Lender shall have received and approved evidence that tenants (pursuant to written lease agreements approved by Lender or otherwise in compliance with the terms and conditions of this LeaseAgreement and in conformance with the most recent appraisal [specifically, except that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to rental rate, Concessions and term]) lease at least ninety percent (90%) of the First Extended Termaggregate net rentable area of the Office Buildings. At Lender’s option, Lender shall have the right to receive, at Borrower’s expense, an updated appraisal for purposes of determining Borrower’s compliance with the first adjustment during foregoing;
(i) The fraction, expressed as a percentage, calculated by dividing the Second Extended Term to be effective as Adjusted Net Operating Income of the date of commencement Property and Improvements by the outstanding principal balance of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month Loan, as of the First Extended Term Maturity Date, shall be at least eight and sixty-five hundredths percent (8.65%); provided, however, if such percentage is less than eight and sixty-five hundredths percent (8.65%), then Borrower may pay down the outstanding principal balance of the Loan in an amount calculated sufficient to satisfy the foregoing requirement. Notwithstanding the definition of Adjusted Net Operating Income, for purposes of determining compliance with this clause (i), Lender may elect, in its sole and absolute discretion, to include projected revenues and expenses relating to leases entered into by multiplying Borrower with third-party tenants that would not otherwise be included for purposes of calculating Adjusted Net Operating Income as a result of the monthly Basic Rent during fact that the last month tenants thereunder had not been paying rent for some or all of the period prior to the Reference Date. Any amounts repaid may not be reborrowed; and
(j) As of the First Extended Term by Maturity Date, the percent increase undisbursed commitment amount of the Loan, together with any Borrower’s Funds on deposit in the Index over the last year Borrower’s Funds Account, shall be sufficient, as determined by Lender in its discretion, to (i) pay, through completion, all costs of development, construction, marketing and sale or leasing of the First Extended Term Property and Improvements in accordance with the Loan Documents; (ii) pay all sums which may accrue under the Loan Documents prior to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will Maturity Date; and (iii) enable Borrower to perform and satisfy all of the covenants to be determined performed by using Borrower under the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024Loan Documents; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall if the monthly Basic Rent for any one (1) year period sum of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration undisbursed commitment amount of the Loan, together with any Borrower’s Funds on deposit in the Borrower’s Funds Account, is insufficient to satisfy the foregoing obligations, then Borrower may deposit additional funds into the Borrower’s Funds Account in order to satisfy such requirement. If Borrower deposits additional Borrower’s Funds in accordance with the foregoing, then prior one (1) year periodto the disbursement of any proceeds of the Loan, Lender shall revise Exhibit C to reflect, by line item, the actual application by Borrower of amounts for such line item and the appropriate adjustment to the Disbursement Budget and Disbursement Plan called for as a result thereof, and (ii) in such revised Exhibit C shall be deemed to replace the event version of Exhibit C attached to the CPI declines in one year from Loan Agreement immediately prior to such revision without the immediately preceding year CPI and then escalates taking of any further action by Lender or Borrower. Except as modified by the following yearSecond Option to Extend, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period terms and condition of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, this Agreement and the provisions thereof relating to any change other Loan Documents as modified and approved by Lender shall remain unmodified and in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Termfull force and effect.”
Appears in 1 contract
Sources: Modification Agreement (Thomas Properties Group Inc)
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Scheduled Maturity Date of the Note shall have been extended in accordance with the terms and provisions of this Agreement, Borrower shall have the option to further extend the term of the Loan ("Second Option to Extend") this Lease for an additional term equal to nine the Second Extended Maturity Date, upon satisfaction of each and every one of the following conditions precedent:
(9a) years Borrower shall provide Agent with written notice of Borrower's request to exercise the Second Option to Extend in the not less than 30 days prior to the First Extended Maturity Date and eleven no more than 60 days to the First Extended Maturity Date.
(11b) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower's delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion and as of the First Extended Maturity Date, no Event of 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 an Event of Default shall have occurred and be continuing, and Borrower shall so certify in writing to the effect best of Borrower’s knowledge.
(c) Borrower shall execute or cause the execution of all documents reasonably required by Agent to exercise the Second Option to Extend.
(d) There shall have occurred no Material Adverse Change, as determined by Agent, in the financial condition of Borrower, or any Guarantor.
(e) At Borrower's sole cost and expense, the issuance by the Title Company, and Agent's receipt, of any endorsements deemed necessary by Agent for attachment to the Title Insurance, insuring the priority and validity of the Security Instrument.
(f) Agent has ordered an Appraisal (at Borrower’s expense) confirming to the satisfaction of Agent that all or some portion the Loan to Value Percentage does not exceed the Second Extension Loan-to-Value Percentage; provided, however, in the event such fair market value is not adequate to meet the required Second Extension Loan-to-Value Percentage, then Borrower shall have the right, at Borrower’s option, to pay down the outstanding principal balance of the Loan such that said Second Extension Loan-to-Value Percentage may be met. The valuation date of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation appraisal shall be within 30 days of the overall maximum term of this Lease applicable Maturity Date. Any principal balance reduction shall reduce Agent's commitment by a like amount.
(which term was to be in all events less than 35 years in duration as g) As of the date of execution Borrower's delivery of this Lease), in which event such portion of the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's request to exercise of this the Second Option to Extend Extend, the Property shall achieve a Debt Yield of not later less than twelve months prior the Second Extension Debt Yield; provided, however, in the event such Debt Yield is not adequate to meet the expiration date required Second Extension Debt Yield, then Borrower shall have the right, at Borrower’s option, to pay down the outstanding principal balance of the Loan such that said Second Extension Debt Yield may be met. Any principal balance reduction shall reduce Agent’s commitment by a like amount. L’Auberge de Sonoma - 77 - Building Loan Agreement/Disbursement Schedule (h) On or before the First Extended Maturity Date, Borrower shall pay to Agent an extension fee in the amount equal to 0.35% of the then current principal balance of the Loan as of the First Extended Term, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45Maturity Date.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Second Option to Extend. Provided Tenant has extended Borrower shall have the Lease for an additional ten option to extend the term of the Loan from the First Extended Maturity Date to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
(10a) year period as set forth in Paragraph 44 above, Landlord hereby grants Borrower shall provide Lender with written notice of Borrower’s request to Tenant an exercise the Second Option to Extend not more than ninety ("Second Option 90) days but not less than thirty (30) days prior to Extend"the First Extended Maturity Date; and
(b) this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the date First Extended Maturity 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
(c) Borrower shall execute or cause the execution of this Lease), in which event such portion of all documents reasonably required by Lender to exercise the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender; and
(d) Guarantor shall have confirmed that it remains in compliance with the expiration date financial covenants in the Guaranty; and
(e) On the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount of three eighths of one percent (.375%) of the total commitment amount of the Loan, as determined on the First Extended Maturity Date; and
(f) At Lender’s option, Lender shall have received a written appraisal dated within 90 days of the First Extended Term, Maturity Date and prepared in which event this Lease shall be extended for conformance with the Second Extended Term on all requirements of the terms and conditions Comptroller of this Lease, except the Currency confirming to the satisfaction of Lender that the Basic Rent shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as commitment amount of the date of commencement Loan as a percentage of the Second Extended Term. The initial "CPI" adjusted Basic Rent as-is bulk value of the portion of the Property then remaining encumbered by the Deed of Trust (after adjustment for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month senior liens and regular and special tax assessments) as of the First Extended Term an amount calculated by multiplying Maturity Date does not exceed the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding oneLoan-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024to-Value Percentage; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, if such as-is bulk value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall pay down the outstanding principal balance of the Loan such that said Loan-to-Value Percentage may be met. Any amounts repaid may not be reborrowed; and
(g) Borrower shall repay $2,500,000 of the outstanding principal amount of the Loan; provided, that (i) any amount repaid in no event shall the monthly Basic Rent for any one accordance with clause (1f) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and above and/or (ii) in any Release Price paid pursuant to Section 2.9 between the event the CPI declines in one year from the immediately preceding year CPI Original Maturity Date and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended TermMaturity Date, shall be credited against such $2,500,000 payment. By way of example, if Borrower repays $1,000,000 in accordance with clause (f) above and pays $1,000,000 in Release Prices pursuant to Section 2.9 between the Original Maturity Date and the provisions thereof relating First Extended Maturity Date, then Borrower shall be required to any change repay an additional $500,000 in accordance with this clause (g). Notwithstanding the manner of calculation or publishing foregoing, if the outstanding principal amount of the CPI Loan is less than $12,000,000 as of the Original Maturity Date, then Borrower shall similarly apply during not be required to make any payments in accordance with this clause (g). Any amounts repaid may not be reborrowed. Except as modified by the Second Extended TermOption to Extend, the terms and condition of this Agreement and the other Loan Documents as modified and approved by Lender shall remain unmodified and in full force and effect.”
Appears in 1 contract
Sources: Modification Agreement (Thomas Properties Group Inc)
Second Option to Extend. Provided Tenant has extended (a) If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Original Maturity Date of the Note shall have been extended in accordance with the terms and provisions of this Agreement, Borrower shall have the option to further extend the term of the Loan (the "SECOND OPTION TO EXTEND") from the First Extended Maturity Date to the Second Extended Maturity Date upon satisfaction of each of the following conditions precedent:
(i) Borrower shall provide Lender with written notice of Borrower's request to exercise the Second Option to Extend"Extend not more than ninety (90) this Lease for an additional term equal days but not less than thirty (30) days prior to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and the First Extended Maturity Date;
(ii) the period between As of the date of execution Borrower's delivery of this Lease notice of request to exercise the Second Option to Extend and as of the Lease Commencement Date First Extended Maturity Date, no Event of 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 an Event of Default shall have occurred and be continuing, and Borrower shall so certify in writing;
(iii) At least one hundred thousand twenty-four (100,024) square feet of net rentable area within the "Build-Out Period"Premises shall be leased to, and occupied by, Qualified Tenants pursuant to Qualified Leases;
(iv) except The Premises shall have achieved and maintained a Debt Service Coverage Ratio of at least 1.20 to 1 for the extent that legal counsel for Tenant delivers to Landlord ninety (90) consecutive day period ending on September 30, 2008;
(v) At Lender's request, in its sole and Tenant absolute discretion, Lender shall have received a Premises Appraisal (dated not more than thirty (30) days prior to the First Extended Maturity Date) confirming to the satisfaction of Lender, in its sole and absolute discretion, that the then-outstanding principal balance of the Loan as a percentage of the As-Is Appraised Value does not exceed fifty-five percent (55%);
(vi) Borrower shall have executed or caused the execution of all documents reasonably required by Lender to exercise the Second Option to Extend and shall have delivered to Lender, at Borrower's sole cost and expense, such title insurance endorsements reasonably required by Lender;
(vii) There shall have occurred no material adverse change, as determined by Lender in its sole and absolute discretion, in the financial condition of Borrower or Guarantor (or any other person or entity in any manner obligated to Lender under the Loan Documents) from that which existed on the Effective Date; and
(viii) On or before the First Extended Maturity Date, Borrower shall have paid to Lender an extension fee in an amount equal to one-quarter of one quarter (0.25%) of the then-outstanding principal balance of the Loan as of the First Extended Maturity Date.
(b) Except as modified by the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration as of the date of execution of this Lease), in which event such portion of the Build-Out Period which has been so determined not to be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term (as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended Term, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that Agreement and the Basic Rent other Loan Documents as modified and approved by Lender shall be adjusted as set forth below remain unmodified and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45effect.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Original Maturity Date shall have been extended to the First Extended Maturity Date in accordance with this Agreement, Borrower shall have the option to further extend the term of the Loan from the First Extended Maturity Date to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
("a) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend not more than ninety (90) days but not less than thirty (30) days prior to the First Extended Maturity Date; and
(b) As of the date of Borrower’s delivery of notice of request to exercise the Second Option to Extend", no monetary or other material Default shall have occurred and be continuing, and as of the First Extended Maturity Date, no Default or 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
(c) this Lease for an additional term equal Borrower and Operating Lessee shall execute or cause the execution of all documents reasonably required by Lender to nine exercise the Second Option to Extend and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender; and
(9d) years and eleven (11) months reduced day for day There shall have occurred no material adverse change, as determined by Lender in its reasonable discretion to the Property or in the financial condition of Borrower, Operating Lessee, Guarantor or any Indemnitor from that which existed as of the later of: (i) any Early Occupancy Period as provided in Paragraph 2C above, the Effective Date; and (ii) the period between date upon which the date financial condition of execution such party was first represented to Lender, and Borrower shall certify to Lender in writing that, in Borrower’s reasonable judgment, no such material adverse change has occurred; and
(e) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount set forth in Section 2.2(c); and
(f) Borrower shall have entered into a new or extended Swap Agreement satisfying each of this Lease the conditions set forth in Section 2.14 and with a term expiring not earlier than the Lease Commencement Date Second Extended Maturity Date; and
(the "Build-Out Period"g) except Borrower shall have paid to the extent that legal counsel for Tenant delivers to Landlord Lender all reasonable costs and Tenant prior to expenses associated with the exercise of the Second Option to Extend, ; and
(h) Lender shall have received an Appraisal ordered by Lender at Borrower’s expense with a legal opinion valuation date within one hundred twenty (120) days of the First Extended Maturity Date and confirming to the effect satisfaction of Lender that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation outstanding principal amount of the overall maximum term Loan as a percentage of this Lease the “as-is” fair market value of the Property (which term was to be in all events less than 35 years in duration after adjustment for senior liens and regular and special tax assessments) as of the date of execution of this LeaseFirst Extended Maturity Date does not exceed fifty-five percent (55.0%) (“Second Extension Loan-to-Value Percentage”); provided, however, in which the event such portion fair market value is not adequate to meet the required Second Extension Loan-to-Value Percentage, then Borrower shall have the right, on or prior to the First Extended Maturity Date, to pay down the outstanding principal balance of the BuildLoan such that said Second Extension Loan-Out Period which has been so determined to-Value Percentage may be met; and
(i) As of the DSCR Non-Quarterly Test Date occurring October 31, 2019, the DSCR shall equal or exceed the Extension DSCR Hurdle; provided, however, in the event such DSCR does not equal or exceed the Extension DSCR Hurdle, Borrower shall have the right, on or prior to be includible for Proposition 13 purposes the First Extended Maturity Date pay to Lender a principal prepayment of the Loan in the amount of the applicable DSCR Shortfall. Any principal balance reduction of the Loan in connection with Borrower’s exercise of the Second Option to Extend shall reduce Lender’s commitment by like amount and may not be deducted from such nine year and eleven month term (reborrowed. Except as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of modified by this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that the Basic Rent Loan Documents shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue remain in full force and effect for the full remaining Lease Termeffect, absent this Paragraph 45unmodified.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)
Second Option to Extend. Provided Tenant has extended Borrower shall have the Lease for an additional ten option to extend the First Extended Mandatory Conversion Date to the Second Extended Mandatory Conversion Date, upon satisfaction of the following conditions precedent:
(10a) year period as set forth in Paragraph 44 above, Landlord hereby grants Borrower shall provide Bondowner Representative with written notice of Borrower’s request to Tenant an exercise the Second Option to Extend not more than ninety ("Second Option 90) days but not less than thirty (30) days prior to Extend"the First Extended Mandatory Conversion Date; and
(b) this Lease for an additional term equal to nine (9) years and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C above, and (ii) the period between As of the date of execution Borrower’s delivery of this Lease and the Lease Commencement Date (the "Build-Out Period") except notice of request to the extent that legal counsel for Tenant delivers to Landlord and Tenant prior to the exercise of the Second Option to Extend, a legal opinion to the effect that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation of the overall maximum term of this Lease (which term was to be in all events less than 35 years in duration and as of the First Extended Mandatory Conversion Date, no Default shall have occurred, 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.
(c) Borrower shall pay to Bondowner Representative an extension fee of and No/100 Dollars ($ .00);
(d) Borrower shall execute or cause the execution of all documents reasonably required by Bondowner Representative to exercise the Second Option to Extend and shall deliver to Bondowner Representative, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Bondowner Representative;
(e) There shall have occurred no material adverse change, as determined by Bondowner Representative in its sole discretion, in the financial condition of Borrower, General Partner, or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) the date upon which the financial condition of such party was first represented to Bondowner Representative;
(f) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the Subordinate Loans and all Subordinate Loan Documents are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document which could have a material adverse effect upon the Property, the Improvements, or the repayment of the Loan; or if there is any such event or condition, the same shall be fully disclosed to Bondowner Representative and Bondowner Representative shall have approved of the extension of the First Extended Mandatory Conversion Date despite the same, such approval to be granted or withheld in Bondowner Representative’s sole discretion;
(g) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the Partnership Documents and the Investor Limited Partner’s obligations to make capital contributions thereunder are unamended and in full force and effect;
(h) The rehabilitation of the Project shall be one hundred percent (100%) complete and lien free, as evidenced by Bondowner Representative’s receipt of a mechanic’s lien free endorsement to the Title Policy, an LP-10 rewrite title policy, a recorded notice of completion, a certificate of occupancy or temporary certificate of occupancy and any other licenses, consents or permits from Governmental Authorities that are necessary to permit lawful residential occupancy of all of the units in the Project and a true copy thereof delivered to Bondowner Representative;
(i) If necessary, Borrower shall have extended to a date not earlier than thirty (30) days after the Second Extended Mandatory Conversion Date the applicable expiration date of execution of this Lease)any commitment with respect to the earliest date on which Investor Limited Partner shall be permitted to withdraw from the Borrower under the Partnership Documents, and Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that such commitments are in which event such portion full force and effect and no defaults have occurred thereunder;
(j) Borrower shall have delivered to Bondowner Representative written evidence satisfactory to Bondowner Representative showing that (i) not less than ninety percent (90%) of the Build-Out Period which has Units within the Project have been so determined leased to third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents, and (ii) not less than ninety percent (90%) of the Units within the Project have been occupied by third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents;
(k) The balance in the interest reserve as of the First Extended Mandatory Conversion Date, as may be supplemented by Borrower, shall be sufficient to pay interest on the Loan until the Second Extended Mandatory Conversion Date; and
(l) Borrower shall have delivered to Bondowner Representative evidence satisfactory to Bondowner Representative that the date of expiration of Permanent Lender’s commitment to fund the Permanent Loan shall be includible for Proposition 13 purposes shall not be deducted from such nine year and eleven month term less than thirty (as so calculated30) days after the Second Extended Mandatory Conversion Date. Upon extension of the First Extended Mandatory Conversion Date pursuant to this Section 3.7, the "date upon which the required pay down of the Note to reduce the Note to the Permanent Loan Amount must occur shall be extended to the date of the Second Extended Term") on Mandatory Conversion Date, and the following terms and conditions;
A. Tenant maturity date of the Note shall give Landlord written notice of Tenant's be unaffected. Except as modified by the exercise of this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that Loan Agreement and the Basic Rent other Loan Documents as modified and approved by Bondowner Representative shall be adjusted as set forth below remain unmodified and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue in full force and effect for the full remaining Lease Term, absent this Paragraph 45effect.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Loan Agreement
Second Option to Extend. Provided Tenant has extended If Borrower shall have exercised the Lease for an additional ten (10) year period as set forth in Paragraph 44 above, Landlord hereby grants to Tenant an First Option to Extend and the Original Maturity Date shall have been extended to the First Extended Maturity Date in accordance with this Agreement, Borrower shall have the option to further extend the term of the Loan from the First Extended Maturity Date to the Second Extended Maturity Date, upon satisfaction of each of the following conditions precedent:
("a) Borrower shall provide Lender with written notice of Borrower’s request to exercise the Second Option to Extend not more than ninety (90) days but not less than thirty (30) days prior to the First Extended Maturity Date; and
(b) As of the date of Borrower’s delivery of notice of request to exercise the Second Option to Extend") this Lease for an additional term equal to nine (9) years , no monetary or other material Default shall have occurred and eleven (11) months reduced day for day by (i) any Early Occupancy Period as provided in Paragraph 2C abovebe continuing, and as of the First Extended Maturity Date, no Default or 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
(iic) Borrower and Operating Lessee shall execute or cause the execution of all documents reasonably required by Lender to exercise the Second Option to Extend and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender; and
(d) There shall have occurred no material adverse change, as determined by Lender in its reasonable discretion to the Property or in the financial condition of Borrower, Operating Lessee, Guarantor or any Indemnitor from that which existed as of the later of: (A) the period between Effective Date; or (B) the date upon which the financial condition of execution such party was first represented to Lender, and Borrower shall certify to Lender in writing that, in Borrower’s reasonable judgment, no such material adverse change has occurred, it being agreed that in no event shall a Partial Release be deemed a material adverse change; and
(e) On or before the First Extended Maturity Date, Borrower shall pay to Lender an extension fee in the amount set forth in Section 2.2(c); and
(f) Borrower shall have entered into a new or extended Swap Agreement satisfying each of this Lease the conditions set forth in Section 2.14 and with a term expiring not earlier than the Lease Commencement Date Second Extended Maturity Date; and
(the "Build-Out Period"g) except Borrower shall have paid to the extent that legal counsel for Tenant delivers to Landlord Lender all reasonable costs and Tenant prior to expenses associated with the exercise of the Second Option to Extend, ; and
(h) Lender shall have received an Appraisal ordered by Lender at Borrower’s expense with a legal opinion valuation date within one hundred twenty (120) days of the First Extended Maturity Date and to the effect satisfaction of Lender that all or some portion of such Build-Out Period is not includible for Proposition 13 reassessment purposes in the calculation commitment amount of the overall maximum term Loan (disbursed and undisbursed) as a percentage of this Lease the “as-is” fair market value of the Property (which term was to be in all events less than 35 years in duration after adjustment for senior liens and regular and special tax assessments) as of the date of execution of this LeaseFirst Extended Maturity Date does not exceed sixty percent (60.0%) (“Second Extension Loan-to-Value Percentage”); provided, however, in which the event such portion fair market value is not adequate to meet the required Second Extension Loan-to-Value Percentage, then Borrower shall have the right, on or prior to the First Extended Maturity Date, to pay down the outstanding principal balance of the BuildLoan or cancel any undisbursed commitment or any combination thereof such that said Second Extension Loan-Out Period which has been so determined to-Value Percentage may be met; and
(i) As of the DSCR Non-Quarterly Test Date occurring October 31, 2018, the DSCR shall equal or exceed the applicable Extension DSCR Hurdle; provided, however, in the event such DSCR does not equal or exceed the applicable Extension DSCR Hurdle, Borrower shall have the right, on or prior to be includible for Proposition 13 purposes the First Extended Maturity Date pay to Lender a principal prepayment of the Loan in the amount of the applicable DSCR Shortfall. Any principal balance reduction of the Loan in connection with Borrower’s exercise of the Second Option to Extend shall reduce Lender’s commitment by like amount and may not be deducted from such nine year and eleven month term (reborrowed. Except as so calculated, the "Second Extended Term") on the following terms and conditions;
A. Tenant shall give Landlord written notice of Tenant's exercise of modified by this Second Option to Extend not later than twelve months prior to the expiration date of the First Extended TermExtend, in which event this Lease shall be extended for the Second Extended Term on all of the terms and conditions of this Lease, except that the Basic Rent Loan Documents shall be adjusted as set forth below and this Paragraph 45 shall be of no further force and effect and deemed deleted thereby. In the event that Tenant fails to timely exercise Tenant's option as set forth herein in writing, Tenant shall have no further Option to Extend this Lease, and this Lease shall continue remain in full force and effect for the full remaining Lease Termeffect, absent this Paragraph 45unmodified.
B. The Second Extended Term's monthly Basic Rent shall be adjusted based on annual adjustments in the CPI in an identical manner to that provided in Paragraph 44 above with respect to the First Extended Term, with the first adjustment during the Second Extended Term to be effective as of the date of commencement of the Second Extended Term. The initial "CPI" adjusted Basic Rent for the Second Extended Term shall be calculated by adding to the monthly Basic Rent during the last month of the First Extended Term an amount calculated by multiplying the monthly Basic Rent during the last month of the First Extended Term by the percent increase in the Index over the last year of the First Extended Term (to wit: the percent increase from Beginning Index for the calendar month which immediately preceded the date of commencement of the last year of the First Extended Term to the Adjustment Index for the calendar month which immediately preceded the date of commencement of the Second Extended Term). The Basic Rent for each succeeding one-year period will be determined by using the same formula applied to the prior year's adjusted monthly Basic Rent. Assuming the Initial Term commences on November 1, 1999, the Second Extended Term would commence on November 1, 2024 and such CPI adjustments would be determined with respect to the following annual periods: from October 2023 to October 2024; from October 2024 to October 2025; from October 2025 to October 2026; from October 2026 to October 2027; from October 2027 to October 2028; from October 2028 to October 2029; from October 2029 to October 2030; from October 2030 to October 2031; from October 2031 to October 2032 and from October 2032 to October 2033 provided, however, that (i) in no event shall the monthly Basic Rent for any one (1) year period of the Second Extended Term, after adjustment, be less than the monthly Basic Rent in effect at the expiration of the prior one (1) year period, and (ii) in the event the CPI declines in one year from the immediately preceding year CPI and then escalates the following year, the following year's CPI increase shall be the net increase over the prior two year period (or such longer period if the CPI had fallen below its prior level for a period of two years or more). Subject to the terms stated herein, the monthly Basic Rent shall be subject to a CPI adjustment on the following dates (assuming the Initial Term commences on November 1, 1999): 11/01/24, 11/01/25, 11/01/26, 11/01/27, 11/01/28, 11/01/29, 11/01/30, 11/01/31, 11/01/32 and 11/01/33. The respective obligations of Landlord and Tenant as to notice of and payment of any CPI adjustments to Basic Rent shall be as provided in Paragraph 44 above as to the First Extended Term, and the provisions thereof relating to any change in the manner of calculation or publishing of the CPI shall similarly apply during the Second Extended Term.
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)