Landlord’s Consent Landlord shall not unreasonably withhold its consent to any proposed Transfer of the Subject Space to the Transferee on the terms specified in the Transfer Notice. Without limitation as to other reasonable grounds for withholding consent, the parties hereby agree that it shall be reasonable under this Lease and under any applicable law for Landlord to withhold consent to any proposed Transfer where one or more of the following apply:
Landlord’s Consent to Alterations Tenant may not make any improvements, alterations, additions or changes to the Premises (collectively, the “Alterations”) without first procuring the prior written consent of Landlord to such Alterations, which consent shall be requested by Tenant not less than fifteen (15) days prior to the commencement thereof, and which consent shall not be unreasonably withheld, conditioned or delayed by Landlord; provided, however, Landlord may withhold its consent in its sole and absolute discretion with respect to any Alterations which may adversely affect the structural components of the Building or the Systems and Equipment in more than a de minimis manner (e.g., the mere tying into Systems shall not be subject to the sole discretion standard) or which can be seen from outside the Building. Tenant shall pay (i) for Alterations performed by Tenant, Landlord’s reasonable third-party costs incurred in connection with reviewing such Alterations, and (ii) for Alterations for which Tenant has engaged Landlord to supervise and Landlord’s contractors to perform, a supervision fee of two and one-half percent (2.5%) of the total cost of such Alteration (for the avoidance of doubt, the foregoing supervisory fee shall not be due or payable in connection with the Tenant Improvements and the Vivarium improvements and no supervisory fee shall be due or payable in connection with any capital improvements performed by Landlord). Notwithstanding the foregoing, no Landlord approval shall be required (provided advance notice shall be provided to Landlord) for (a) installation, removal or realignment of furniture systems not involving any modifications to the structure or connections (other than by ordinary plugs or jacks) to the Systems, (b) Alterations which could not reasonably be expected to affect the structural components of the Building or the Systems and Equipment and which cost less than $150,000 for any one (1) job and no more than $300,000 in the aggregate in any calendar year during the Lease Term (excluding any costs for painting, carpeting, and similar purely cosmetic work), (c) Alterations which do not require a building permit, and (d) merely cosmetic work (such as painting and carpeting). The construction of the initial improvements to the Premises shall be governed by the terms of the Tenant Work Letter and not the terms of this Article 8.
Landlord’s Consent Required Subject to the remaining provisions of this Article 11, but notwithstanding anything to the contrary contained elsewhere in this Lease, Tenant shall not assign, transfer or encumber any interest in this Lease (either absolutely or collaterally) or sublease or allow any third party to use any portion of the Premises (collectively or individually, a “Transfer”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Without limitation, Tenant agrees that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; (2) the proposed transferee is a governmental organization or present occupant of the Property, or Landlord is otherwise engaged in lease negotiations with the proposed transferee for other premises in the Property; (3) any uncured event of default exists under this Lease (or a condition exists which, with the passage of time or giving of notice, would become an event of default); (4) any portion of the Building or Premises would likely become subject to additional or different Laws as a consequence of the proposed Transfer; (5) the proposed transferee’s use of the Premises conflicts with the Permitted Use or any exclusive usage rights granted to any other tenant in the Building; (6) the use, nature, business, activities or reputation in the business community of the proposed transferee (or its principals, employees or invitees) does not meet Landlord’s standards for Building tenants; (7) either the Transfer or any consideration payable to Landlord in connection therewith adversely affects the real estate investment trust qualification tests applicable to Landlord or its Affiliates; or (8) the proposed transferee is or has been involved in litigation with Landlord or any of its Affiliates. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Any attempted Transfer in violation of this Article is voidable at Landlord’s option.
Landlord’s Approval Tenant shall not make, or allow to be made, any alterations, physical additions, improvements or partitions, including without limitation the attachment of any fixtures or equipment, in, about or to the Premises (“Alterations”) without obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld with respect to proposed Alterations which: (i) comply with all Applicable Laws; (ii) are, in Landlord’s opinion, compatible with the Building or the Project and the Base Building Systems , and will not cause the Building or Project or Base Building Systems to be required to be modified to comply with any Applicable Laws (including, without limitation, the Americans With Disabilities Act); and (iii) will not materially interfere with the use and occupancy of any other portion of the Building or Project by any other tenant or its invitees. Specifically, but without limiting the generality of the foregoing, Landlord shall have the right to approve all plans and specifications for the proposed Alterations, construction means and methods, all appropriate permits and licenses, any contractor or subcontractor to be employed on the work of Alterations, and the time for performance of such work, and may impose rules and regulations for contractors and subcontractors performing such work. Landlord may, in its sole discretion, specify engineers, general contractors, subcontractors, and architects to perform work affecting the Base Building Systems. Tenant shall also supply to Landlord any documents and information reasonably requested by Landlord in connection with Landlord’s consideration of a request for approval hereunder. No review or consent by Landlord of or to any proposed Alteration or additional work shall constitute a waiver of Tenant’s obligations under this Paragraph 12, nor constitute any warranty or representation that the same complies with all applicable Laws, for which Tenant shall at all times be solely responsible. Tenant shall reimburse Landlord for all out-of-pocket, reasonable costs which Landlord may incur in connection with granting approval to Tenant for any such Alterations, including any costs or expenses which Landlord may incur in electing to have outside architects and engineers review said plans and specifications. Tenant shall also pay to Landlord a fee for its review of plans and its management and supervision of the progress of the work in an amount equal to 3% of the cost of any Alterations (other than for Minor Alterations). The Tenant Improvements constructed pursuant to the Tenant Improvement Agreement shall not be deemed to be Alterations hereunder.
Landlord’s Compliance Landlord shall comply with (or cause to be complied with) all Requirements applicable to the Building which are not the obligation of Tenant, to the extent that non-compliance would materially impair Tenant’s use and occupancy of the Premises for the Permitted Uses.
Alterations by Landlord Landlord may from time to time:
Landlord's Improvements All fixtures, improvements or equipment which are installed, constructed on or attached to the Premises or Common Area by Landlord shall be a part of the realty and belong to Landlord.
Alterations For purposes of this Lease, any physical improvement addition, enhancement or change with respect to all or any portion of the Premises is referred to as an "Alteration." Tenant or Franchisor shall have the right at any time and from time to time during the Term to make or cause to be made any Alteration in or to the Premises (i) without Landlord's consent, if such Alteration is performed in order to comply with any of Tenant's agreements with Franchisor and such Alteration does not adversely affect any structural component of the Building and (ii) in the case of any Alteration other than those permitted under clause (i) above, with Landlord's prior consent, which consent shall not be unreasonably withheld provided that such Alteration does not (A) diminish the value of the Premises (including, by way of example only, but without limitation, by diminishing the utility of the Improvements for use as a restaurant or diminishing the useful life of the Improvements), except to a de minimis extent, or (B) adversely affect any structural component of the Building. Every Alteration shall be made in accordance with all applicable laws, legal requirements and the Permitted Encumbrances. If Tenant shall submit a request to Landlord for Landlord's approval of an Alteration which requires Landlord's approval, Landlord shall (x) approve such Alteration proposed by Tenant within twenty-one (21) days of receiving Tenant's proposal and request for approval or (y) disapprove Tenant's proposal in writing with a detailed explanation of its objections within twenty-one (21) days of receiving Tenant's proposal and request for approval. If Tenant submits a proposal to Landlord and Landlord disapproves such proposal within the twenty-one (21) day time period, Tenant may submit another proposal with modifications thereto made in response to Landlord's objections and Landlord shall so approve or disapprove same within seven (7) days after submission of such modified proposal. If Landlord does not approve or disapprove any proposal or modified proposal in writing with a detailed explanation of its objections within the applicable seven (1) or twenty-one (21) day period, Tenant may submit to Landlord a reminder notice, which shall state that Landlord's failure to disapprove the applicable proposal within seven (7) days after receipt of such reminder notice shall be deemed to constitute Landlord's approval thereof. If Landlord does not disapprove such proposal or modified proposal in writing with a detailed explanation of Landlord's objections to Tenant's modifications within seven (7) days after receipt of Tenant's reminder notice, Landlord shall be deemed to have approved the Alterations proposed by Tenant.
TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and maintain the Premises (including appurtenances) and every part thereof in a good standard of maintenance and repair, or replacement, and in good and sanitary condition and repair. Tenant’s maintenance, repair and replacement responsibilities herein referred to include, but are not limited to, janitorization, all windows (interior and exterior), window frames, plate glass and glazing (destroyed by accident or act of third parties), truck doors, plumbing systems (such as water and drain lines, sinks, toilets, faucets, drains, showers and water fountains), electrical systems (such as panels, conduits, outlets, lighting fixtures, lamps, bulbs, tubes and ballasts), heating and air conditioning systems (such as compressors, fans, air handlers, ducts, mixing boxes, thermostats, time clocks, boilers, heaters, supply and return grills), structural elements and exterior surfaces of the Building, store fronts, roofs, downspouts, all interior improvements within the Premises including but not limited to wall coverings, window coverings, carpet, floor coverings, partitioning, ceilings, doors (both interior and exterior), including closing mechanisms, latches and locks, skylights (if any), automatic fire extinguishing systems, and elevators and all other interior improvements of any nature whatsoever, and all exterior improvements including but not limited to landscaping, sidewalks, driveways, parking lots including striping and sealing, sprinkler systems, lighting, ponds, fountains, waterways, and drains. Tenant shall be required to have the HVAC system serviced by a licensed HVAC contractor (approved by Landlord) at the earlier frequency of (a) the periodic servicing recommended by the manufacturer of such equipment in its written maintenance specifications or (b) semiannually throughout the Term of the Lease, and shall submit to Landlord copies of all related service reports within thirty (30) days of receipt and any repairs reports if requested by Landlord. Furthermore, Tenant shall inform Landlord in writing of the periodic service recommendations by the respective manufacturer within thirty (30) days of Tenant’s receipt of such information. Areas of excessive wear shall be replaced at Tenant’s sole expense upon Lease termination. Tenant hereby waives all rights under, and benefits of, Subsection 1 of Section 1932 and Section 1941 and 1942 of the California Civil Code and under any similar law, statute or ordinance now or hereafter in effect. Tenant understands and acknowledges that this Lease shall be deemed and construed to be a “triple net lease” and during the Initial Term, and any Extended Term(s), of this Lease Tenant shall pay Landlord, the Rent and other payments due hereunder, free of any charges, assessments, impositions, expenses or deductions of any kind and without abatement, deduction or setoff unless otherwise expressly provided in this Lease, and Landlord shall not be expected or required as a result of the relationship between Landlord and Tenant created by this Lease, to be obligated to make any payment to or on behalf of Tenant or be under any other obligation to Tenant hereunder except to the extent specifically provided in this Lease, and Tenant agrees to pay all costs and expenses of every kind which may arise or become due from Tenant under the provisions of this Lease during the Initial Term and any Extended Term(s). Except as expressly provided in this Lease or the Construction Agreement, Landlord shall not be liable and/or responsible under the provisions of this Lease for contributing any money for any maintenance, repairs and/or replacement of the Premises or any part thereof and as to the maintenance, repairs or replacement obligations of Tenant under this Lease, Tenant waives any and all rights it might otherwise have to assert that such expenditure is more appropriately a Landlord expenditure which should be treated as a capital expenditure and/or to be amortized as an item of Additional Rent hereunder. For example, if during the Lease Term (including any Extended Term(s)), a portion or the entire roof membrane and/or HVAC system needs to be repaired or replaced, such expenditure shall not be treated as a capital expenditure to be borne by Landlord, but rather Tenant shall be responsible, upon such occurrence, for bearing the entire cost for such repair and/or replacement. By placing their initials below, both parties acknowledge their understanding and their agreement with the provisions of this Paragraph 8. Initials: DWD Initials: JA Tenant Landlord
TENANT'S IMPROVEMENTS If the Lessor is the Insuring Party, the Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease. If Lessee is the Insuring Party, the policy carried by Lessee under this Paragraph 8.3 shall insure Lessee Owned Alterations and Utility Installations.
