Common use of Landlord’s Recapture Rights Clause in Contracts

Landlord’s Recapture Rights. Notwithstanding any other provision of this Article, if Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in this Lease or the Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases or transfers then in effect) would affect more than fifty percent (50%) of the Rentable Area of the Premises in the aggregate (such total affected portion of the Rentable Area of the Premises being referred to herein as the “Recapture Space”), then Landlord shall have the option to recapture the Recapture Space, which option shall be exercisable only by giving written notice to Tenant (“Recapture Notice”) within fifteen (15) days after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery of a Recapture Notice to Tenant, Tenant shall have the right, for up to fifteen (15) days following receipt of such Recapture Notice, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease shall continue in full force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space effective on the date that is specified in Tenant’s request for consent as the effective date of the proposed transfer. Landlord’s recapture rights shall be subject to the rights of any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapture.

Landlord’s Recapture Rights. Notwithstanding any other provision of this Article, if Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in this Lease or the Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases or transfers then in effect) would affect more than fifty percent (50%) of the Rentable Area of the Premises in the aggregate (such total affected portion of the Rentable Area of the Premises being referred to herein as the “Recapture Space”), then Landlord shall have the option to recapture terminate this Lease upon the Recapture Spaceoccurrence of any of the following events: (a) Construction of the Improvements has not commenced within four and one-half (4.5) years after the Commencement Date of this Lease; (b) Tenant has not opened the Premises to the public within seven (7) years after the Commencement Date of this Lease; (c) If, which option after such time Tenant has opened a children’s museum on the Premises to the public, Tenant shall be exercisable only cease museum operations in the Premises for a period of four (4) consecutive months. For purposes of the preceding sentence, the failure to keep the museum open to the public for at least 20 hours in a calendar week shall constitute a cessation of museum operations for that calendar week. Landlord may exercise this termination right by giving written notice notifying Tenant in writing of its intention to Tenant (“Recapture Notice”) within fifteen (15) days terminate this Lease at any time after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery the occurrence of a Recapture Notice to Tenant, Tenant shall have the right, for up to fifteen (15) days following receipt Event. This Lease will be deemed canceled and of such Recapture Notice, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease shall continue in full no further force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space effective effect on the date that is specified in ninety (90) days after the date on which Tenant receives such notice from Landlord unless Tenant cures such Recapture Event within such ninety (90) day period. If this Lease is terminated because of the occurrence of a Recapture Event after construction has commenced but before a certificate of occupancy has been issued for the improvements constructed by Tenant on the Premises, then Landlord may require Tenant to raze, clear and dispose of such improvements at Tenant’s request for consent as the effective date cost and expense, which obligation shall survive termination of the proposed transferLease. Notwithstanding the foregoing, a Recapture Event shall not be deemed to have occurred under the following circumstances: (i) Tenant’s cessation of business operations as a result of condemnation, damage to or destruction of the Improvements, provided that Tenant commences its restoration work within one hundred eighty (180) days after the date that Tenant has received (x) its building permit (which shall be applied for by Tenant within one hundred eighty (180) days after the date the casualty occurs) and (y) Landlord’s recapture rights approval of its plans and specifications for the reconstructed Improvements (which shall be subject submitted to Landlord within one hundred eighty (180) days after the date the casualty occurs), and reopens to the rights public not later than two (2) years after such work is commenced; or (ii) Tenant’s cessation of business operations for a period not to exceed one (1) year due to remodeling, expansion or other renovations to the Improvements or a major exhibit renovation. Tenant shall use good faith reasonable efforts to notify Landlord in advance of any assigneerequired cessation of business operations due to a scheduled remodeling, subtenant expansion or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject renovations to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease Improvements or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapturea major exhibit renovation.

Landlord’s Recapture Rights. Notwithstanding any other provision of this ArticleArticle 11, if Tenant desires to assign, sublease or otherwise transfer Transfer to any person or entity (other than an Affiliate) any interest in this Lease or the Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer Transfer (together with all other assignments, subleases or transfers Transfers then in effect) would affect more than fifty sixty percent (5060%) of the then-remaining Rentable Area of the Premises in the aggregate (such total affected portion of the Rentable Area of the Premises being referred to herein as the “Recapture Space”) for more than sixty percent (60%) of the then-remaining Lease Term (not taking into account any possible Extension Periods), then Landlord shall have the option to recapture the Recapture Space, which option shall be exercisable only by giving written notice to Tenant (“Recapture Notice”) within fifteen thirty (1530) days after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery of a Recapture Notice to TenantTenant (i) Tenant may, Tenant shall have the right, for up by delivering written notice to fifteen Landlord within two (152) business days following after receipt of such the Recapture Notice, rescind its request to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option Transfer any interest in this Lease or the Premises, whereupon Landlord shall have no right to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, the Recapture Space and this Lease shall continue remain in full force and effect. If , or (ii) should Tenant fail to deliver written notice to Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent within two (2) business days as provided hereinmentioned in sub-section (i) above, this Lease shall terminate terminate, and Tenant shall be fully and forever released by Landlord of and from all non-delinquent obligations of Tenant under this Lease with respect to the Recapture Space effective on the date that is specified in Tenant’s request for consent as the effective date of the proposed transfer. Landlord’s recapture rights shall be subject to Transfer, except for those obligations which expressly survive the rights term of any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject this Lease pursuant to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapturethereof.

Landlord’s Recapture Rights. Notwithstanding (1) Except with respect to (i) transfers permitted pursuant to Section 11.2, and (ii) any other provision of this ArticleExempt from Recapture Subleases, if as hereinafter defined, in the event Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in assign this Lease or to sublet the whole or any part of the Premises Tenant shall, at any time the Recapture Condition exists, give Landlord a Recapture Offer, which Recapture Offer, at Tenant’s option, may be given to Landlord prior to advertising or marketing the Premises or any part thereof, then . (2) For the purposes hereof a “Recapture Offer” shall be defined as a notice from Tenant shall deliver to Landlord which: (a) States that Tenant desires to sublet the Premises, or a written request for consentportion thereof, together with all or to assign its interest in this Lease. (b) Identifies the affected portion of the information Premises (“Recapture Premises”). (c) Identifies the rental rate of the proposed subletting or assignment. (d) Offers to Landlord the option to terminate the Lease in respect of the Recapture Premises (in the case of a proposed assignment of Tenant’s interest in the Lease or a subletting for the remainder of the Term of the Lease) or to suspend the Lease Term in respect of the Recapture Period (meaning that the Lease Term in respect of the Recapture Premises shall be terminated during the Recapture Period, and Tenant’s rental obligations shall be proportionately reduced, and at the expiration of the Recapture Period the Recapture Premises will be returned to Tenant under the terms of the Lease), in either case as of a specified in Section 11.05 above. If such transfer date (together with all other assignments, subleases or transfers then in effectthe “Release Date”). (3) would affect The “Recapture Condition” shall be either (i) that more than fifty twenty-five percent (5025%) of the Rentable Area of the Premises in has been subleased for all or substantially all of the aggregate remaining Lease Term (such total affected portion exclusive of any Permitted Transfers or any subleases of the Basement Storage Premises and the Basement Put Premises) or (ii) that Tenant is then Occupying less than fifty-four percent (54%) of the Rentable Area of the Building. (4) For the purposes hereof, “Exempt from Recapture Subleases” shall be defined as Short-Term Phase II Premises being referred to herein A and Phase III Premises Subleases (as the “Recapture Space”hereinafter defined), then Landlord shall have (b) the option to recapture the Recapture SpaceExisting Tenant Put Premises C Sublease (as hereinafter defined), which option shall be exercisable only by giving written notice to Tenant and (“Recapture Notice”c) within fifteen (15) days after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery of a Recapture Notice to Tenant, Tenant shall have the right, for up to fifteen (15) days following receipt of such Recapture Notice, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease shall continue in full force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space effective on the date that is specified in Tenant’s request for consent as the effective date any sublease of the proposed transfer. Landlord’s recapture rights shall be subject to the rights of Basement Put Premises, or any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recaptureportion thereof.

Landlord’s Recapture Rights. Notwithstanding any other provision of this Article, if Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in this Lease or the Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases or transfers then in effect) would affect more than fifty percent (50%) of the Rentable Area of the Premises in the aggregate (such total affected portion of the Rentable Area of the Premises being referred to herein as the “Recapture Space”), then Landlord shall have the option to terminate this Lease and recapture the Recapture Space, which option shall be exercisable only Premises by giving Tenant written notice thereof following the date of one of the following events: (a) The failure of Tenant to Tenant keep the Premises open for business for any sixty (“Recapture Notice”60) within fifteen consecutive-day period, excluding any closures for continuous and diligent rebuilding, restoration, additions, remodeling, or repairs, or events of delay as described in Section 28(i) below; or (15b) days after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery of a Recapture Notice to Tenant, Tenant shall have the right, for up to fifteen One hundred eighty (15180) days following receipt commencement of demolition of the Premises and failure to diligently and continuously rebuild, replace or use the Premises for commercial purposes. In the event Landlord elects to terminate the Lease, such Recapture Notice, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease termination shall continue in full force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space be effective on the date that is specified in Tenant’s request for consent as thirty (30) days from the effective date of Tenant's receipt of Landlord's notice of termination, unless within such thirty (30) days, Tenant informs Landlord in writing that Tenant intends to rebuild or reopen the proposed transferPremises for business, and diligently commences to rebuild and does in fact reopen, the Premises for business. Upon Tenant's surrender of the Premises, Landlord shall pay Tenant an amount equal to its unamortized cost of the improvements to the Premises less all costs incurred by Landlord to lease the Premises, including without limitation, costs of removal and/or demolition of improvements, alterations to the Premises, and marketing costs and brokers' commissions. Upon termination, this Lease (except for any obligations occurring prior to such termination or that expressly survive termination or, if requested by Landlord’s recapture rights , Tenant's obligations to remove improvements, and restore the Premises) will be of no further force or effect, and Landlord and Tenant shall be subject to the rights of any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapturereleased from all future obligations under this Lease.

Landlord’s Recapture Rights. Notwithstanding any other provision of this Article, if Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in this Lease or the Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases or transfers then in effect) would affect more than fifty percent (50%) of the Rentable Area of the Premises in the aggregate (such total affected portion of the Rentable Area of the Premises being referred to herein as the “Recapture Space”), then Landlord shall have the option to recapture terminate this Lease upon the Recapture Spaceoccurrence of any of the following events: (a) Construction of the Improvements has not commenced within four and one-half (4.5) years after the Commencement Date of this Lease; (b) Tenant has not opened the Premises to the public within seven (7) years after the Commencement Date of this Lease; (c) If, which option after such time Tenant has opened a children’s museum on the Premises to the public, Tenant shall be exercisable only cease museum operations in the Premises for a period of four (4) consecutive months. For purposes of the preceding sentence, the failure to keep the museum open to the public for at least 20 hours in a calendar week shall constitute a cessation of museum operations for that calendar week. Landlord may exercise this termination right by giving written notice notifying Tenant in writing of its intention to Tenant (“Recapture Notice”) within fifteen (15) days terminate this Lease at any time after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery the occurrence of a Recapture Notice to Tenant, Tenant shall have the right, for up to fifteen (15) days following receipt Event. This Lease will be deemed canceled and of such Recapture Notice, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease shall continue in full no further force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space effective effect on the date that is specified in ninety (90) days after the date on which Tenant receives such notice from Landlord unless Tenant cures such Recapture Event within such ninety (90) day period. If this Lease is terminated because of the occurrence of a Recapture Event after construction has commenced but before a certificate of occupancy has been issued for the improvements constructed by Tenant on the Premises, then Landlord may require Tenant to raze, clear and dispose of such improvements at Tenant’s request for consent as the effective date cost and expense, which obligation shall survive termination of the proposed transferLease. LandlordNotwithstanding the foregoing, a Recapture Event shall not be deemed to have occurred under the following circumstances: (i) Tenant’s recapture rights shall be subject cessation of business operations for a period not to exceed two (2) years as a result of condemnation, damage to or destruction of the Improvements; or (ii) Tenant’s cessation of business operations for a period not to exceed one (1) year due to remodeling, expansion or other renovations to the rights Improvements or a major exhibit renovation. Tenant shall use good faith reasonable efforts to notify Landlord in advance of any assigneerequired cessation of business operations due to a scheduled remodeling, subtenant expansion or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject renovations to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease Improvements or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapture.a major exhibit renovation. [OPEN FOR FURTHER DISCUSSION]

Landlord’s Recapture Rights. Notwithstanding (i) If Tenant shall at any other provision time or times during the term of this ArticleLease desire to assign this Lease or sublet the Premises (other than as set forth in Section 24.D. above), if Tenant shall first give notice thereof to Landlord, which notice shall be accompanied by a statement from Tenant setting forth in reasonable detail the material economic terms upon which Tenant desires to assignsublet the Premises or assign the Lease, the effective or commencement date of which shall not be less than thirty (30) days nor more than ninety (90) days after the giving of such notice, and the proposed use of the Premises (the "Statement"). Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option, terminate this Lease, provided that Landlord shall ensure that Tenant receives the same net economic benefit (which is the profit after taking into account payment of all rents hereunder and other expenses incurred in connection with such occupancy had such transaction not have been entered into) in connection with such termination that Tenant reasonably anticipates that Tenant would have received had the proposed sublease or otherwise transfer assignment been consummated. Said option (the "Recapture Option") may be exercised by Landlord only by notice given to Tenant at any time within thirty (30) days after such notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease or sublet the Premises to any person or entity (other than an Affiliatea permitted transfer as set forth in Section 24.D above). (ii) any interest in If Landlord timely exercises the Recapture Option, then this Lease shall end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the Minimum Rent and Additional Rent shall be paid by Tenant to Landlord and apportioned to such date, and Landlord shall pay to Tenant an amount (the "Recapture Reimbursement Amount") equal to the net economic benefit Tenant reasonably anticipates that Tenant would have received in respect of the assignment or the Premises sublease (including, in both cases and without limitation, all amounts that Tenant reasonably anticipates that Tenant would have received in connection with the sale of Tenant's business operations at the Premises), and including an adjustment for, in the case of a sublease, the difference between (x) the rents to be paid by the subtenant to Tenant pursuant to the sublease and (y) the rent payable by Tenant to Landlord for the same period of time as the term of such sublease (assuming that the increases in Minimum Rent shall be based only on the fixed increases, without reference to Gross Receipts), which payment shall be paid by Landlord when the payment(s) by such assignee or subtenant, as the case may be, would have been payable to Tenant pursuant to the terms described in the Statement. (iii) Landlord expressly agrees that neither the exercise of the Recapture Option nor the payment to Tenant of the Recapture Reimbursement Amount shall give Landlord or any part thereofdesignee of Landlord the right to use the Xxxxx & Wollensky name or any right to own or operate a Xxxxx & Wollensky restaurant. Nothing contained herein shall preclude Tenant from opening, owning and/or operating a Xxxxx & Wollensky restaurant anywhere in Las Vegas (including, without limitation, in close proximity to the Premises). (iv) If Landlord shall have advised Tenant that Landlord does not desire to exercise the Recapture Option (or if Landlord shall have failed to timely exercise the Recapture Option), and Tenant shall thereafter (a) request Landlord's consent to an Additional Permitted Transfer (as such term is defined in Section 24.G below), or (b) notify Landlord of an As-of-Right Transaction (as such term is defined in Section 24.F below), and, in either case, if such proposed transaction shall include (x) in the case of an assignment of this Lease, a reduction of more than five (5%) percent of the consideration (if any) to be paid to Tenant by the assignee as set forth in the in the Statement, or (y) in the case of a subletting, a reduction in the economic terms of more than five (5%) percent from what was set forth in the Statement, then Landlord shall once again have a right to exercise the Recapture Option with respect thereto. (v) If Landlord shall have advised Tenant that Landlord does not desire to exercise the Recapture Option (or if Landlord shall have failed to timely exercise the Recapture Option), and Tenant shall not have either notified Landlord of an As-of-Right Transaction or requested Landlord's consent to an Additional Permitted Transfer within one hundred eighty (180) days thereafter, then Tenant shall be required to again deliver a Statement and otherwise comply with the foregoing provisions of this Section 24.E, and Landlord may exercise the Recapture Option with respect to Landlord a written request for consent, together with all proposed assignment of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases this Lease or transfers then in effect) would affect more than fifty percent (50%) of the Rentable Area a subletting of the Premises in that does not come within the aggregate scope of Section 24.D above. (such total affected portion of vi) If Landlord shall have advised Tenant that Landlord does not desire to exercise the Rentable Area of Recapture Option (or if Landlord shall have failed to timely exercise the Premises being referred to herein as the “Recapture Space”Option), then Landlord shall have the option to recapture the Recapture Space, which option shall be exercisable only by giving written notice to Tenant (“Recapture Notice”) within fifteen (15) days after Landlord’s receipt of Tenant’s request for consent. Upon Landlord’s timely delivery of a Recapture Notice to Tenant, Tenant shall have the rightright to assign this Lease or sublease the Premises in accordance with the provisions of Section 24.F and Section 24.G below, for up to fifteen (15) days following receipt of such Recapture Noticesubject, however, to withdraw Tenant’s written request for Landlord’s consent which triggered Landlord’s option to recapture by written notice to Landlord. If Tenant withdraws Tenant’s written request for Landlord’s consent as provided herein, this Lease shall continue in full force and effect. If Landlord exercises its option to recapture and Tenant does not withdraw its written request for Landlord’s consent as provided herein, this Lease shall terminate with respect to the Recapture Space effective on the date that is specified in Tenant’s request for consent as the effective date provisions of the proposed transfer. Landlord’s recapture rights shall be subject to the rights of any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject to the terms immediately preceding subdivisions (iv) and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapture(v).