Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) the receipt of Landlord's notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if: (a) the proposed assignee or subtenant is a tenant elsewhere in the Complex or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or (b) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or (c) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; or (d) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or (e) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or (f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or (g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or (h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. Notwithstanding (1) The Tenant must obtain the provisions Landlord’s consent before assigning the interest of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, Tenant in the event that Premises.
(2) The Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to must give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) the receipt of Landlord's notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed an assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in Tenant proves to the Complex or is (or within the previous sixty (60) days has been) in active negotiation (meaning Landlord that the prospective landlord entity new person has issued sufficient financial resources or received a lease proposal with such partybusiness experience to meet the Tenant's obligations under this Lease, by giving the Landlord:
(i) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion name and address of the Premises new person;
(the “Subleased Premises”ii) to a tenant copy of the Building or elsewhere within the Complex if such subtenant's need, proposed assignment of lease;
(iii) information as to the size financial circumstances and business experience of premises the new person in a form reasonably required by the Landlord;
(b) the Tenant and length the new person do anything that the Landlord reasonably requires concerning the dealing (for example, giving the Landlord an executed transfer of termlease);
(c) the Tenant and the new person enter into any agreement that the Landlord reasonably requires (for example, candeed of consent);
(d) the new person obtains any personal guarantee that the Landlord reasonably requires;
(e) the new person obtains any Bank Guarantee that the Landlord reasonably requires; and
(f) the Tenant is not then in breach of this Lease.
(i.e.3) Before the Tenant seeks the Landlord's consent, at the time that Tenant's sublease Tenant must give the new person:
(a) a copy of the Disclosure Statement which the Landlord gave the Tenant before the Commencement Date of this Lease and details of any changes of which the Tenant is aware or would commence) reasonably be satisfied by Landlord or its affiliates within the Building or the Complexexpected to be aware; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%) a copy of the Premises does not possess adequate financial capability to perform current Disclosure Statement which the Tenant obligations as may request from the Landlord and when due which the Landlord must give the Tenant within fourteen (14) days;
(c) business records for the previous three (3) years or requiredthe period the Tenant has carried on business at the Premises (if it be a lesser period); and
(d) if the new person is to use the Premises for an ongoing business, a Disclosure Statement, (a copy of which is to be given to the Landlord).
(4) The Landlord is not obliged to give consent if the new person proposes to use the Premises other than for the Permitted Use.
(5) The Landlord may in the Landlord’s absolute discretion refuse consent to:
(a) a sublease, licence or concession for all or part of the Premises;
(b) the Tenant parting with occupancy rights to all or part of the Premises; or
(c) the assignee Tenant mortgaging, charging or subtenant proposes to use encumbering the Premises estate or interest of the Tenant in this Lease.
(or part thereof6) for If the Tenant is a purpose corporation (other than a corporation whose shares are listed on the purpose for which the Premises may be used as stated in Section 1.2 hereof; or
(d) the character official list of the business to be conducted or Australian Stock Exchange Limited), a change in the proposed use effective control of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) corporation is treated as an assignment of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or
(f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to LandlordLease.
Appears in 1 contract
Samples: Lease (Retail)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty ninety (15090) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) or any portion of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant in the Building or elsewhere in the Complex Project if Landlord has, or reasonably expects to have at the time of the proposed commencement and during the term of the proposed sublease, comparable space available in the Building, or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex Project or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%i) is not of good character and reputation or (ii) will use the Premises for, and does not have reasonable experience in, the operation and management of research and development and laboratory purposes, including vivariums, in first-class office and laboratory buildings, or
(c) the proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(d) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or
(f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. Notwithstanding If Tenant has complied with the provisions of Section 12.1 8.01B hereof and Landlord has not exercised any of its foregoing options within the time period set forth above, but subject Landlord's consent to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, proposed assignment or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) the receipt of Landlord's notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent subletting shall not be unreasonably withheld, conditioned or delayed. Any disapproval by Landlord of a proposed assignment or subletting , and shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
given within thirty (a) the proposed assignee or subtenant is a tenant elsewhere in the Complex or is (or within the previous sixty (6030) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or
(c) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; or
(d) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or
(f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunderAssignment/Sublet Documentation; provided, however, that Landlord may withhold consent thereto if such assignment or sublease shall not be executed and delivered to in the reasonable exercise of its judgment Landlord within ninety determines that:
(901) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy The financial condition of the proposed assignmentassignee or sublessee (taking into account any security deposit and/or guaranties delivered in connection therewith and any other relevant factors) is insufficient or not consistent with the obligation and responsibility undertaken by the proposed assignment or sublease;
(2) The proposed business to be conducted in the Premises is not appropriate for the Building or in keeping with the character of the existing tenancies, sublease and or the use does not comply with the terms of Section 5.01 of this Lease or the terms of any other contractual documents, provided direct lease of any portion of the Building Office Space or the proposed occupant (or its affiliate) is a competitor of Landlord or another Landlord Entity in the ownership and/or management of office buildings;
(3) The nature of the occupancy of the proposed assignee or sublessee will cause a materially greater density of employees or traffic or make greater demands on the Building's services or facilities than that made by Tenant;
(i4) Landlord has been provided with sufficient information Tenant proposes to make such decision, and assign or sublet to (iix) any approval by Landlord one who at the time is a tenant (or subsidiary or affiliate of a tenant) or a party in possession of premises in the Building or (y) one with whom Landlord is negotiating for a lease of space in the Building, or has delivered to, or received from, within the immediately preceding one hundred twenty (120) day period, a written offer, proposal, term sheet, letter of intent or draft lease;
(5) The assignee or sublessee shall have or enjoy diplomatic immunity;
(6) Such proposed transferee shall be conditioned upon Landlord's subsequent approval subletting would result in the Premises being divided into more than three (3) units; or
(7) Any combination of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlordforegoing conditions exists.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty eighty (150180) days after (i) after the receipt of Landlord's notice ’s notice, if any, stating that Landlord does not elect to exercise the termination right or Landlord’s deemed waiver of such termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) portion of the Premises described in the Proposed Transfer Notice in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by If Landlord shall fail to respond to Xxxxxx’s request for such consent within fifteen (15) business days, Tenant may re-send such request for consent to Landlord via registered or certified mail, return receipt requested, or recognized overnight delivery service, with the following statement in bold at the beginning of a proposed assignment or subletting such request, “WARNING: POSSIBLE DEEMED APPROVAL NOTICE. Failure to respond to this request within five (5) business days may lead to deemed approval of such request”. Should Landlord fail to respond to such second request within five (5) business days after receipt thereof, Xxxxxxxx’s consent shall set forth be deemed given hereunder. Anything in reasonable detail this Lease to the reason or reasons thereforcontrary notwithstanding, the time periods for the exercise of Landlord’s termination right pursuant to Section 12.3 and the time periods with respect to Xxxxxxxx’s consent right pursuant to Section 12.4 hereof shall run concurrently and not consecutively. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing Transfer requiring Landlord’s consent if:
(aA) the proposed assignee or subtenant is a tenant an occupant of the Building or elsewhere in Parcel 2 of the Complex Development Area or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for comparable premises in a building, other than the Building or elsewhere in Building, within Parcel 2 of the Complex Development Area or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bB) [intentionally deleted], or
(C) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform Tenant’s obligations pursuant to this Lease as and when due or required after such assignment, or the Tenant proposed subtenant does not possess adequate financial capability to perform its obligations pursuant to the sublease as and when due or required; , or
(cD) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose use other than the purpose Permitted Uses for which the Premises may be used as stated in Section 1.2 hereof; , or
(dE) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed Transfer; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(eF) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fG) [intentionally deleted], or
(H) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gI) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (proposed assignment or sublease where such holder has approval rights pursuant to the terms of the mortgage)their mortgage or ground lease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hJ) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease[intentionally deleted]. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety one hundred eighty (90180) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall again be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided If Xxxxxx believes in good faith that (i) Landlord has been provided with sufficient information unreasonably withheld its consent under this Section 12.4, in any case where Landlord is required not to make such decisionunreasonably withhold its consent, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does notshall give notice thereof to Landlord, within ninety five (905) business days of Tenant's initial request for Landlord's approval’s withholding (or deemed withholding) of consent, enter into Tenant shall have the right to an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered expedited determination of such claim pursuant to LandlordSection 12.8 below.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty eighty (150180) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by It is understood and agreed that Landlord’s consent shall be deemed given hereunder if Landlord shall fail to respond to a Proposed Transfer Notice meeting the requirements of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons thereforSection 12.5 below within ten (10) business days after receipt thereof from Tenant. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in the Complex Building, the Additional Building or the building known as Reservoir Place North and numbered 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx or is (or within the previous sixty (60) days has been) in active negotiation with the landlord of the building in question (meaning but with respect to the 000 Xxxxxx Xxxx building, only if the landlord of such building and the landlord of the Building are affiliated with each other), and Landlord (or such affiliated landlord) has existing space that the prospective landlord entity has issued or received a lease proposal with satisfies such party’s needs), or
(b) with Landlord, Overlandlord, the proposed assignee or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or subtenant is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bc) giving appropriate weight, if applicable, to the fact that Tenant will nevertheless remain liable under this Lease, the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform assure the performance of the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's ’s Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building Buildings systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) materially violate or be likely to materially violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty twenty (150120) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is (i) a tenant elsewhere in the Complex Building and Landlord has comparable space available to lease to such party, or (ii) is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or (iii) is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or the proposed subtenant does not possess adequate financial capability to perform the subtenant obligations as and when due or required, or
(c) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; , or
(d) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's ’s Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be an existing an monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three five (35) or more monetary or material non-monetary Event of Default occurrences within during the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; Term, or
(f) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (proposed assignment or sublease where such mortgagee or holder has approval rights pursuant to under the terms of the mortgage)mortgage or ground lease, which approval will not be unreasonably withheldas applicable, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed subleaseBuilding. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. (A) Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right or had the right to exercise its termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one three hundred fifty sixty-five (150365) days after (i) the after receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after receipt of the Proposed Transfer Notice (as hereinafter defined) if Tenant shall not have been required to provide Landlord with a Recapture Offer under Section 12.3, or (iii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises or portions thereof in accordance with the Proposed Transfer Notice Notice, provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by It is understood and agreed that Landlord’s consent shall be deemed given hereunder if Landlord shall fail to respond to a Proposed Transfer Notice meeting the requirements of Section 12.5 below within ten (10) business days after receipt thereof from Tenant; provided that such Proposed Transfer Notice, in bold 14 point type, advises Landlord of a the fact that if Landlord fails to respond within the ten (10) business day period, Landlord shall be deemed to have consented to the proposed sublease or assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. question, in accordance with this Section 12.4.
(B) Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not then a tenant elsewhere in or subtenant of the Office Building or Hub Complex or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord a Hub Owner for premises in the Office Building or elsewhere in the Hub Complex (as evidenced by Landlord’s or a HubOwner’s receipt of a proposal or counter-proposal from such prospective tenant or subtenant prior to Tenant’s receipt of a proposal or counter-proposal from such prospective tenant or subtenant; withdrawal of any such proposal or counter-proposal by the proposed assignee or subtenant shall not act to change such party’s status as being in “active negotiation” with Landlord or Tenant, as the case may be) and Landlord has existing space that satisfies such party’s needs;
(b) the proposed assignee or subtenant is not of a character consistent with the operation of a first first-class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a sowhose use is not consistent with the first-called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion class nature of the Premises (other tenancies in the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; orOffice Building);
(bc) in the case of an assignment, the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; orrequired (recognizing, however, that the originally named Tenant will also remain liable therefor);
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; or;
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's (i) Operating Expenses beyond that which Landlord now incurs for use by Tenant; , or (ii) be likely to materially increase the burden on elevators or other Building systems Systems or equipment over the burden generated by normal and customary office usage; prior to such proposed subletting or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; orassignment;
(ef) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; orDefault;
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or;
(gh) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same proposed assignment or sublease (where such holder has approval rights pursuant to the terms and provisions of the mortgageapplicable mortgage or ground lease), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or;
(hi) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Office Building or elsewhere in the Hub Complex; or
(j) if Tenant is in default of its monetary or material non-monetary obligations under the Lease beyond any applicable notice or cure periods at the time that it makes a Recapture Offer to Landlord in accordance with Section 12.3 above, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right such default shall be deemed to sublease all or any portion of the Premises shall not be restricted by a “reasonable” reason for Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to withholding its consent to a any proposed sublease. subletting or assignment.
(C) If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety three hundred sixty-five (90365) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 12.3 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Rapid7, Inc.)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty ninety (15090) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant an occupant of the Building or elsewhere in the Complex Prudential Center or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex Prudential Center or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent is not of good character and reputation, or
(40%c) of the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within during the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; Term, or
(fg) the proposed rent and other charges to be payable by the proposed assignee or subtenant are less than the market rent and other charges for first class office space for properties of a similar character in the Boston Downtown market, or
(h) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gi) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage)proposed assignment or sublease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hj) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the ComplexBuilding or elsewhere in the Prudential Center, including, without limitation, or
(k) Landlord receives the Retail Portion Proposed Transfer Notice within the last six (6) months of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion Term of the Premises shall not be restricted by Lease, or
(l) Landlord (x) due or an affiliate of Landlord has office space similar in size to the financial condition of Premises available to lease in the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed subleasePrudential Center. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease (the whole but not part of the Premises) or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Flex Pharma, Inc.)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty ninety (15090) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in an occupant of the Complex Building or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent is not of good character and reputation, or
(40%c) of the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's ’s Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within during the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; Term, or
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gh) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage)proposed assignment or sublease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hi) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed subleaseBuilding. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease (the whole but not part of the Premises) or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Advent Technologies Holdings, Inc.)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty eighty (150180) days after (i) after the receipt of Landlord's notice ’s notice, if any, stating that Landlord does not elect to exercise the termination right or Landlord’s deemed waiver of such termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) portion of the Premises described in the Proposed Transfer Notice in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by If Landlord shall fail to respond to Xxxxxx’s request for such consent within fifteen (15) business days, Tenant may re-send such request for consent to Landlord via registered or certified mail, return receipt requested, or recognized overnight delivery service, with the following statement in bold at the beginning of a proposed assignment or subletting such request, “WARNING: POSSIBLE DEEMED APPROVAL NOTICE. Failure to respond to this request within five (5) business days may lead to deemed approval of such request”. Should Landlord fail to respond to such second request within five (5) business days after receipt thereof, Xxxxxxxx’s consent shall set forth be deemed given hereunder. Anything in reasonable detail this Lease to the reason or reasons thereforcontrary notwithstanding, the time periods for the exercise of Landlord’s termination right pursuant to Section 12.3 and the time periods with respect to Xxxxxxxx’s consent right pursuant to Section 12.4 hereof shall run concurrently and not consecutively. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing Transfer requiring Landlord’s consent if:
(aA) the proposed assignee or subtenant is a tenant an occupant of the Building or elsewhere in Parcel 3 of the Complex Development Area or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for comparable premises in a building, other than the Building or elsewhere in Building, within Parcel 3 of the Complex Development Area or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bB) [intentionally deleted], or
(C) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform Tenant’s obligations pursuant to this Lease as and when due or required after such assignment, or the Tenant proposed subtenant does not possess adequate financial capability to perform its obligations pursuant to the sublease as and when due or required; , or
(cD) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose use other than the purpose Permitted Uses for which the Premises may be used as stated in Section 1.2 hereof; , or
(dE) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed Transfer; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(eF) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fG) [intentionally deleted], or
(H) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gI) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (proposed assignment or sublease where such holder has approval rights pursuant to the terms of the mortgage)their mortgage or ground lease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hJ) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease[intentionally deleted]. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety one hundred eighty (90180) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall again be applicable. At the written request of TenantIf Xxxxxx believes in good faith that Xxxxxxxx has unreasonably withheld its consent under this Section 12.4, in any case where Landlord will approve or disapprove of a proposed transferee prior is required not to receiving a finalunreasonably withhold its consent, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does notshall give notice thereof to Landlord, within ninety five (905) business days of Tenant's initial request for Landlord's approval’s withholding (or deemed withholding) of consent, enter into Xxxxxx shall have the right to an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered expedited determination of such claim pursuant to LandlordSection 12.8 below.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, Period in the event Landlord shall not give any or timely notice under Section 12.3 12.3, as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) portion of the Premises in accordance with the Proposed Transfer Notice or Notice of Intent to Transfer, as the case may be, provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval by If Landlord fails to respond to a proper and complete Proposed Transfer Notice within fifteen (15) business days following receipt of such Proposed Transfer Notice and a written request for Landlord’s consent to the proposed sublease or assignment described in such Proposed Transfer Notice, then Tenant shall be entitled to send Landlord a second notice requesting Landlord’s approval thereto (“Second Transfer Notice”) which shall state in bold face, capital letters at the top thereof: “WARNING: SECOND REQUEST. FAILURE TO RESPOND TO THIS REQUEST WITHIN FIVE (5) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL THEREOF.” If Landlord does not respond within five (5) business days after receipt of the Second Transfer Notice, then Landlord’s consent to the proposed assignment or subletting described in such transfer request shall set forth be deemed to have been granted. If Tenant does not enter into a sublease or assignment in reasonable detail accordance with the reason Proposed Transfer Notice or reasons thereforNotice of Intent to Transfer, as the case may be, within such one hundred twenty (120) day period, then the provisions of Section 12.3 shall again apply prior to Tenant entering into any proposed sublease or assignment. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in the Complex Building unless Landlord cannot satisfy the space needs of such assignee or subtenant (with regard only to the size of the space and the term offered), or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex Atlantic Wharf or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the [Omitted Intentionally], or
(c) a proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by TenantTenant and which Tenant or such subtenant does not agree to pay to Landlord; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment and which Tenant or such subtenant does not agree to alleviate or compensate to Landlord’s reasonable satisfaction over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions expressly contained herein in this Lease relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there have been three two (32) or more Event of Default occurrences within during the twelve (12) months immediately preceding Landlord's receipt previous year of Tenant's Proposed Transfer Notice; the Term, or
(fg) [Omitted Intentionally], or
(h) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gi) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned proposed assignment or delayed sublease in accordance with the terms of this Article XII; its agreement with Landlord (and provided that such holder does not unreasonably withhold, condition or delay such approval and the consent of such holder shall not be required with respect to a sublease or an assignment to any Permitted Transferee), or
(hj) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all Building or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed elsewhere in order to consent to a proposed subleaseAtlantic Wharf. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease the portion of the Premises or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 12.3 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Brightcove Inc)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty eighty (150180) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in the Complex or is (or within Building, the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the 4CC Building or elsewhere in the Complex Development Area or is in active negotiation with the landlord of the building in question, provided that the foregoing shall apply to the 4CC Building or elsewhere in the Development Area only if the landlord of this Building, and the landlord of the other pertinent building, are affiliated with each other (as defined in Section 16.32), or
(b) the proposed assignee or subtenant is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bc) giving appropriate weight, if applicable, to the fact that Tenant will nevertheless remain liable under this Lease, the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform assure the performance of the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Property beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) materially violate or be likely to materially violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
, or If Tenant believes in good faith that Landlord has unreasonably withheld its consent under this Section 12.4, in any case where Landlord is required not to unreasonably withhold its consent, if Tenant shall give notice thereof to Landlord, within five (g5) with respect business days of Landlord’s withholding (or deemed withholding) of consent, Tenant shall have the right to a proposed assignment or a sublease an expedited determination of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights claim pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord12.8 below.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, thirty (30) day period referred to in Section 12.3 in the event Landlord shall not give any or timely notice under Section 12.3 12.3, as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) or any part of the Premises in accordance with the Proposed Transfer Notice Tenant’s notice to Landlord given as provided in Section 12.5 provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant in the Building or elsewhere in the Complex Prudential Center or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord Landlord’s affiliate for premises in the Building or elsewhere in the Complex Prudential Center (and at Tenant’s written request Landlord shall furnish Tenant with a list of such entities with which Landlord or its affiliate is (or within 60 days has been) in active negotiation) or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all Landlord will not withhold its consent solely because the proposed subtenant or a portion of the Premises (the “Subleased Premises”) to a tenant assignee is an occupant of the Building or elsewhere within in the Complex Prudential Center, if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within Landlord’s affiliate does not have space available for lease in the Building or elsewhere in the Complex; Prudential Center that is comparable to the space Tenant desires to sublet or assign. For purposes hereof, Landlord or such affiliate shall be deemed to have comparable space if it has space available on any floor of the Building or elsewhere in the Prudential Center that is approximately the same size as the space Tenant desires to sublet or assign within six (6) months of the proposed commencement of the proposed sublease or assignment, or
(b) the proposed assignee or any subtenant subleasing more than forty percent is not of good character and reputation, or
(40%c) of the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice); or
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty eighty (150180) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in the Complex or is (or within Building, the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the 8CC Building or elsewhere in the Complex Development Area or is in active negotiation with the landlord of the building in question, provided that the foregoing shall apply to the 8CC Building or elsewhere in the Development Area only if the landlord of this Building, and the landlord of the other pertinent building, are affiliated with each other (as defined in Section 16.32), or
(b) the proposed assignee or subtenant is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bc) giving appropriate weight, if applicable, to the fact that Tenant will nevertheless remain liable under this Lease, the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform assure the performance of the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Property beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) materially violate or be likely to materially violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fg) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
, or If Tenant believes in good faith that Landlord has unreasonably withheld its consent under this Section 12.4, in any case where Landlord is required not to unreasonably withhold its consent, if Tenant shall give notice thereof to Landlord, within five (g5) with respect business days of Landlord’s withholding (or deemed withholding) of consent, Tenant shall have the right to a proposed assignment or a sublease an expedited determination of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights claim pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord12.8 below.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in In the event that Landlord shall not have exercised the termination or suspension right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.311.3, then for a period of one hundred fifty twenty (150120) days after the earlier of (i) the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination or suspension right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) portion of the Premises designated in accordance with the Proposed Transfer Notice Recapture Offer, provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standardforegoing, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) : the proposed assignee or subtenant is a tenant elsewhere in the Complex Building or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency agency), or to a so-called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%) is not of good character and reputation, or the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or
(c) , or the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; or
(d) Permitted Use, or the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be existing an Event of Default (defined in Default. This Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or
(f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises 11.4 shall not be restricted by Landlord (x) due applicable to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered pursuant to LandlordSection 11.2.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) the receipt of Landlord's notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any disapproval approval by Landlord of a proposed assignment or subletting consent by Landlord to any plans, specifications, or other items to be submitted by Tenant to and/or reviewed by Landlord pursuant to this Exhibit "A" shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its strictly limited to an acknowledgment of approval or consent to by Landlord thereto and such a proposed assignment approval or subleasing if:
(a) consent shall not constitute an assumption by Landlord of any responsibility for the proposed assignee accuracy, sufficiency or subtenant is a tenant elsewhere in the Complex feasibility of any plans, specifications or is (other such items and shall not imply any representation, acknowledgment or within the previous sixty (60) days has been) in active negotiation (meaning warranty by Landlord that the prospective landlord entity has issued design is safe, feasible or received a lease proposal structurally sound or will comply with such party) with any legal or governmental requirements. Any deficiency in design, although same had prior approval of Landlord, Overlandlordshall be solely the responsibility of Tenant, and any deficiency in any construction by Tenant or any affiliate Tenant's Contractor shall be solely the responsibility of Landlord or Overlandlord for premises in Tenant. MOUNT VERNON PLACE PARTNERS EXHIBIT "B" FIFTH AMENDMENT TO ISS LEASE TENANT IMPROVEMENTS IN REMAINING SPACE EXHIBIT B LEGAL DESCRIPTION BUILDINGS 1 & 2 MOUNT VERNON PLACE XXX XXXX XXXXX XX XXXXXX XX XXXX xxxxx xxx xxxxx xx Xxxx Lot 35 of the Building or elsewhere in 17th District, Fulton County, Georgia, and being more pxxxxxxxxxxx xxxxxxxxx xx xxxxxxx: TO FIND THE POINT OF BEGINNING, commence at Fulton County GIS Monument F451 and run thence South 51 degrees 55 mixxxxx 13 seconds East, a distance of 4,769.3 feet to a point located at the Complex or is not intersection of the southerly existing right-of-way line of Mount Vernon Highway (70-foot right-of-way) and the easterly existing right-xx-xxy line of Barfield Road (right-of-way varies); run thence along said easterly exxxxxxx right-of-way line of Barfield Road South 00 degrees 06 minutes 00 seconds East, a distance xx 00.08 feet to a one-half inch (1/2") rebar found; thence leaving said easterly existing right-of-way line of Barfield Road (right-of-way varies), run North 89 degrees 53 minutes 00 xxxxxds East, a distance of 11.37 feet to a point located on the easterly new right-of-way line of Barfield Road, said point being THE POINT OF BEGINNING; FROM THE POINX XX XXXINNING AS THUS ESTABLISHED, run thence North 89 degrees 53 minutes 30 seconds East, a distance of 188.60 feet to a one-half inch (1/2") rebar found; run thence North 89 degrees 53 minutes 30 seconds East, a distance of 13.99 feet to a point; run thence South 00 degrees 06 minutes 30 seconds East, a distance of 8.38 feet to a point; run thence South 89 degrees 53 minutes 58 seconds East, a distance of 125.81 feet to a point located on the westerly existing right-of-way line of Georgia 400 (right-of-way varies); run thence southerly along said westerly existing right-of-way line of Georgia 400 South 02 degrees 52 minutes 39 seconds West, a distance of 42.70 feet to a point; run thence along the arc of a character consistent with curve to the operation left, said arc having a radius of 6,622.90 feet and being subtended by a chord which bears South 02 degrees 48 minutes 36 seconds West, an arc distance of 15.55 feet to a point; continue thence along said westerly existing right-of-way line of Georgia 400 (right-of-way varies) along the arc of a first class office building (curve to the left, said arc having a radius of 6,622.90 feet and being subtended by way a chord which bears South 02 degrees 42 minutes 57 seconds West, an arc distance of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or 468.64 feet to a sopoint[??? CONFIRM PREVIOUS CALL WHICH IS NOT SHOWN ON LATEST REVISION OF SURVEY]; thence leaving said westerly existing right-called “call center”of-way line of Georgia 400 (right-of-way varies). Notwithstanding the foregoing, Tenant may sublease all or run North 88 degrees 32 minutes 29 seconds West, a portion distance of the Premises (the “Subleased Premises”) 318.70 feet to a tenant point located on the easterly new right-of-way line of the Building or elsewhere within the Complex if such subtenant's needBarfield Road (right-of-way varies); run thence along said easterly nxx xxxxx-of-way line of Barfield Road North 00 degrees 06 minutes 00 seconds West, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or
(c) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; or
(d) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects distance xx 000.77 feet to a proposed assignee point, said point being THE POINT OF BEGINNING. Said property containing 170,041 square feet or subtenant 3.9036 acres, more or less, and being shown and depicted on the grounds that certain plat of subsection (i) or (ii) of survey captioned, "Boundary Survey, New Right-of-Way Along Mt. Vernon Hwy.," prepared for Mount Vernon Place Partners, LLC by HDR/WL Xxxxxn, under certification and xxxx xf Clyde R. Eldredge, PLS, Gexxxxx Xxxistered Land Surveyor No. 2659, daxxx Xxxxx 00, 0001, last revised May 8, 2002, which survey is incorporated herein and made a part hereof by this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) there shall be existing an Event of Default (defined reference. TOGETHER WITH those certain rights and easements as described in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; or
(f) any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms and conditions of that certain [Reciprocal Easement Agreement by and among Mount Vernon Place Partners, LLC, Spring Creek Partners, LLC and the Develoxxxxx Authority of Fulton County, Georgia dated____________________________________, 2000, xx be recorded in the records of Fulton County, Georgia.] ALSO TOGETHER WITH a non-exclusive xxxxxs and parking easement as contained in and pursuant to the terms and conditions of that certain Access and Parking Easement Agreement by and between Spring Creek Partners, LLC and Mount Vernon Place Partners, LLC, dated as of November 30, 1999, and recordxx xx Deed Book 28068, Page 272 of the mortgage)records of Fulton County, which approval will not be unreasonably withheld, conditioned or delayed Georgia. ALSO TOGETHER WITH those certain rixxxx xnd easements as contained in accordance with and pursuant to the terms and conditions of that certain Storm and Sanitary Sewer Agreement by and among Investment Capital Company/Mount Vernon, Gary Unell, Edward J. Levin, Nancy B. Brooks and John Albert Xxxxxx, Xx-Xxxxxxxs xxxxx Xxxxxxxxxon xx Xxxxx Xxxxxnated Xxxoxx Xxxxx xxxxd July 19, 1982, and recorded in Book 8920, Page 238 xx xxe records of Fulton County, Georgia. DRAFT: 6-07-01 MOUNT VERNON PLACE (XXXXXXXX 0) LEASE AGREEMENT THIS LEASE, made and entered into as of this Article XII; or
8th day of June 2001, by and between SPRING CREEK PARTNERS, L.L.C., a Georgia limited liability company (h) due hereinafter referred to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be"Landlord") and INTERNET SECURITY SYSTEMS, thenINC., in such event, Tenant may thereafter sublease or assign pursuant a Georgia corporation (hereinafter referred to as the as the "Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.");
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty twenty (150120) days after (i) the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet all or any portion of the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) a. the proposed assignee or subtenant is a tenant elsewhere in the Complex Building or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity Landlord has issued or received a lease proposal with such party) with Landlord, Overlandlord, Landlord or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-quasi governmental agency or to a so-so called “call center”). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's ’s need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's ’s sublease would commence) be satisfied by Landlord or its affiliates within the Building or the ComplexBuilding; or
(b) b. the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or
(c) c. the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; or
(d) d. the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's ’s Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(e) e. there shall be existing an Event of Default (defined in Section 15.1) or there have been three two (32) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's ’s receipt of Tenant's ’s Proposed Transfer Notice; or
(f) f. any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
(g) with respect to a proposed assignment or a sublease of 50% or more of the Premises, g. the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(h) h. due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting for space in within the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed subleaseBuilding. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's ’s subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's ’s approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's ’s initial request for Landlord's ’s approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty (150) days after (i) the receipt of Landlord's notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the a Proposed Transfer Notice (as defined in Section 12.5) provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant in the Building or elsewhere in the Complex Prudential Center or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex Prudential Center or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent is not of good character and reputation, or
(40%c) of the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden burden: on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there shall have been three (3) or more Event of Default occurrences within Defaults during the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; Term, or
(fg) the proposed rent and other charges to be payable by the proposed assignee or subtenant are less than the market rent and other charges for first class office space for properties of a similar character in the Boston Downtown market, or
(h) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or of sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gi) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage), which approval will not be unreasonably withheld, conditioned proposed assignment or delayed in accordance with the terms of this Article XIIsublease; or
(hj) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all Building or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth elsewhere in the documentation previously delivered to LandlordPrudential Center.
Appears in 1 contract
Samples: Sublease (Flex Pharma, Inc.)
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty and eighty (150180) days after (i) the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) portion of the Premises described in the Proposed Transfer Notice in accordance with the Proposed Transfer Notice Notice; provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(aA) the proposed assignee or subtenant is a tenant elsewhere in the Complex or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued or received a lease proposal with such party) with Landlord, Overlandlord, or any affiliate of Landlord or Overlandlord for premises in the Building or elsewhere is in active negotiation with Landlord and or an affiliate of Landlord and Landlord has existing space that satisfies such party’s needs, or
(B) the Complex proposed assignee or subtenant is not of a character consistent with the operation of a first class office office/lab building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(bC) giving appropriate weight, if applicable, to the fact that Tenant will nevertheless remain liable under this Lease, the proposed assignee or any subtenant subleasing more than forty percent (40%) of the Premises does not possess adequate financial capability to perform assure the performance of the Tenant obligations as and when due or required; , or
(cD) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; , or
(dE) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's ’s Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usageprior to such proposed subletting or assignment; or (iii) materially violate or be likely to materially violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(eF) there shall be existing an a monetary or material non-monetary Event of Default (defined in Section 15.1) or there have been three (3) or more Event of Default occurrences within the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; ), or
(fG) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gH) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (proposed assignment or sublease, where such mortgage holder or ground lessor has approval rights with respect to such proposed assignment or subletting pursuant to the terms of the mortgage)its mortgage or ground lease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hI) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to LandlordBuilding.
Appears in 1 contract
Consent of Landlord. Notwithstanding the provisions of Section 12.1 above, but subject to the provisions of this Section 12.4 and the provisions of Sections 12.6 and 12.7 below, in the event that Landlord shall not have exercised the termination right as set forth in Section 12.3, or shall have failed to give any or timely notice under Section 12.3, then for a period of one hundred fifty ninety (15090) days after (i) after the receipt of Landlord's ’s notice stating that Landlord does not elect to exercise the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 12.3 as the case may be, Tenant shall have the right to assign this Lease or sublet the whole (but not part) of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. Any disapproval by Landlord of a proposed assignment or subletting shall set forth in reasonable detail the reason or reasons therefor. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant elsewhere in an occupant of the Complex Building or is (or within the previous sixty (60) days has been) in active negotiation (meaning that the prospective landlord entity has issued with Landlord or received a lease proposal with such party) with Landlord, Overlandlord, or any an affiliate of Landlord or Overlandlord for premises in the Building or elsewhere in the Complex or is not of a character consistent with the operation of a first class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency or to a so-called “call center”agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the “Subleased Premises”) to a tenant of the Building or elsewhere within the Complex if such subtenant's need, as to the size of premises and length of term, cannot then (i.e., at the time that Tenant's sublease would commence) be satisfied by Landlord or its affiliates within the Building or the Complex; or
(b) the proposed assignee or any subtenant subleasing more than forty percent is not of good character and reputation, or
(40%c) of the Premises proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant Tenant’s obligations as and when due or required; , or
(cd) the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.2 1.1 hereof; , or
(de) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses for the Building beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 12.4(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
(ef) there shall be existing an Event of Default (defined in Section 15.1) or there have been three (3) or more Event Events of Default occurrences within during the twelve (12) months immediately preceding Landlord's receipt of Tenant's Proposed Transfer Notice; Term, or
(fg) the proposed rent and other charges to be payable by the proposed assignee or subtenant are less than the market rent and other charges for first class office space for properties of a similar character in the Back Bay/Boston Downtown market, or
(h) any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; , or
(gi) with respect to a proposed assignment or a sublease of 50% or more of the Premises, the holder of any mortgage or ground lease on property which includes the Premises having approval rights over such proposed assignment or sublease does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage)proposed assignment or sublease, which approval will not be unreasonably withheld, conditioned or delayed in accordance with the terms of this Article XII; or
(hj) due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation violation. of any covenant or restriction contained in another lease or other agreement affecting space in the Complex, including, without limitation, the Retail Portion of the Complex. Notwithstanding the foregoing, Tenant's right to sublease all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed subleaseBuilding. If Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease (the whole but not part of the Premises) or assign pursuant to Tenant's ’s notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's ’s consent, the consent shall be deemed null and void and the provisions of Section 12.2 shall be applicable. At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
Appears in 1 contract
