Construction In First Offer Space Tenant shall take the First Offer Space in its “as is” condition, subject to any improvement allowance granted as a component of the Fair Rental Value, and the construction of improvements in the First Offer Space shall comply with the terms of Article 8 of this Lease.
Landlord’s Option to Repair Notwithstanding the terms of Section 11.1 of this Lease, Landlord may elect not to rebuild and/or restore the Premises, Building and/or Project, in which event this Lease shall terminate, by notifying Tenant in writing of such termination within sixty (60) days after the date of discovery of the damage, such notice will include a termination date giving Tenant sixty (60) days to vacate the Premises, but this Lease may be so terminated Landlord may so elect only if the Building or Project shall be damaged by fire or other casualty or cause, whether or not the Premises are affected, and one or more of the following conditions is present: (i) in Landlord’s reasonable judgment, repairs cannot reasonably be completed within one hundred eighty (180) days after the date of discovery of the damage (when such repairs are made without the payment of overtime or other premiums); (ii) the holder of any mortgage on the Building or Project or ground lessor with respect to the Building or Project shall require that the insurance proceeds or any portion thereof be used to retire the mortgage debt, or shall terminate the ground lease, as the case may be; (iii) the damage is not fully covered by Landlord’s insurance policies or that portion of the proceeds from Landlord’s insurance policies allocable to the Building or the Project, as the case may be; (iv) Landlord decides to rebuild the Building or Common Areas so that they will be substantially different structurally or architecturally; (v) the damage occurs during the last twelve (12) months of the Lease Term; or (vi) any owner of any other portion of the Project, other than Landlord, does not intend to repair the damage to such portion of the Project; provided, however, that if such fire or other casualty shall have damaged the Premises or a portion thereof or Common Areas necessary to Tenant’s occupancy and as a result of such damage the Premises are unfit for occupancy, and provided that Landlord does not elect to terminate this Lease pursuant to Landlord’s termination right as provided above, and either (a) the repairs cannot, in the reasonable opinion of Landlord’s contractor, be completed within two hundred seventy (270) days after being commenced, or (b) the damage occurs during the last twelve months of the Lease Term and will reasonably require in excess of ninety (90) days to repair, Tenant may elect, no earlier than sixty (60) days after the date of the damage and not later than ninety (90) days after the date of such damage, to terminate this Lease by written notice to Landlord effective as of the date specified in the notice, which date shall not be less than thirty (30) days nor more than sixty (60) days after the date such notice is given by Tenant.
Landlord’s Option as to Subject Space Notwithstanding anything to the contrary contained in this Article 14, in the event Tenant contemplates a Transfer other than to a Permitted Transferee which, together with all prior Transfers then remaining in effect, would cause fifty percent (50%) or more of the Premises to be Transferred for more than fifty percent (50%) of the then remaining Lease Term (taking into account any extension of the Lease Term which has irrevocably exercised by Tenant), Tenant shall give Landlord notice (the “Intention to Transfer Notice”) of such contemplated Transfer (whether or not the contemplated Transferee or the terms of such contemplated Transfer have been determined). The Intention to Transfer Notice shall specify the portion of and amount of rentable square feet of the Premises which Tenant intends to Transfer in the subject Transfer (the “Contemplated Transfer Space”), the contemplated date of commencement of the Contemplated Transfer (the “Contemplated Effective Date”), and the contemplated length of the term of such contemplated Transfer. Thereafter, Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after receipt of any Intention to Transfer Notice, to recapture the Contemplated Transfer Space. Such recapture shall cancel and terminate this Lease with respect to such Contemplated Transfer Space as of the Contemplated Effective Date. In the event of a recapture by Landlord, if this Lease shall be canceled with respect to less than the entire Premises, the Rent reserved herein shall be prorated on the basis of the number of rentable square feet retained by Tenant in proportion to the number of rentable square feet contained in the Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the parties shall execute written confirmation of the same. If Landlord declines, or fails to elect in a timely manner, to recapture such Contemplated Transfer Space under this Section 14.4, then, subject to the other terms of this Article 14, for a period of nine (9) months (the “Nine Month Period”) commencing on the last day of such thirty (30) day period, Landlord shall not have any right to recapture the Contemplated Transfer Space with respect to any Transfer made during the Nine Month Period, provided that any such Transfer is substantially on the terms set forth in the Intention to Transfer Notice, and provided further that any such Transfer shall be subject to the remaining terms of this Article 14. If such a Transfer is not so consummated within the Nine Month Period (or if a Transfer is so consummated, then upon the expiration of the term of any Transfer of such Contemplated Transfer Space consummated within such Nine Month Period), Tenant shall again be required to submit a new Intention to Transfer Notice to Landlord with respect any contemplated Transfer, as provided above in this Section 14.4. Tenant shall not be required to provide a separate Intention to Transfer Notice and Tenant’s request for Landlord’s consent to a Transfer shall satisfy Tenant’s obligations in this Section 14.4.
Landlord’s Option At any time within ten (10) days after Landlord's receipt of the notice specified in Section 14.2, Landlord may by notice to Tenant elect to (a) terminate this Lease as to the portion (including all) of the Premises that is specified in Tenant's notice, with a proportionate abatement in the Base Rent, (b) consent to the Sublease or Assignment, or (c) disapprove the Sublease or Assignment; Landlord shall not unreasonably withhold its consent to the Assignment or Sublease. Tenant shall pay as additional rent, Landlord's reasonable attorneys' fees incurred in connection with the review of any proposed Assignment or Sublease. Tenant agrees to pay Landlord fifty percent (50%) of the amount by which all sums payable to Tenant in connection with such Assignment or Sublease exceed the total of (a) Base Rent payable by Tenant to Landlord hereunder, (b) reasonable leasing commission incurred by Tenant in connection therewith, and (c) the cost of any Alterations reasonably incurred in connection therewith, and (d) advertisement costs. If Landlord consents to the Sublease or Assignment within such ten (10) day period, Tenant may thereafter within sixty (60) days after Landlord's consent enter into such Assignment or Sublease with such approved assignee or subtenant upon the terms and conditions set forth in the notice furnished by Tenant to Landlord pursuant to Section 14.2. No Assignment or Sublease shall be binding on Landlord until Tenant delivers an executed copy of such Assignment or Sublease to Landlord. Notwithstanding Section 14.3 or any other provision to the contrary, in the event Landlord exercises its recapture right under this Section 14.3, Tenant shall have the right to rescind its notice for request to sublease, assign or transfer within three (3) business days following receipt of Landlord's notice of recapture.
Option to Extend Lease Term At the expiration of the original Lease Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows:
Landlord’s Recapture Right If, at any time during the term of the Lease, Tenant fails to satisfy the Operating Condition (defined below), for reasons other than Excused Closure (defined below), and such failure continues for six (6) consecutive months or more, then upon notice from Landlord to Tenant at any time thereafter (provided that the Operating Condition remains unsatisfied), Landlord shall have the right to terminate the Lease and to recapture the Leased Premises, without payment to Tenant, effective upon the date set forth in Landlord’s termination notice (but not sooner than 30 days after the date of the termination notice).
Condition of Expansion Space Tenant has inspected the Expansion Space and agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as may be expressly provided otherwise in this Amendment.
Assignment and Subletting by Tenant 7.1.1 Tenant shall not have the right to assign, transfer, mortgage or encumber this Lease in whole or in part, nor sublet the whole or any part of the Premises, nor allow the occupancy of all or any part of the Premises by another, without first obtaining Landlord’s consent, which consent may be granted or denied in accordance with this paragraph. In no event shall the determination of the amount of rent be expressed in whole or in part as a percentage of the income or profits derived by the subtenant from the space leased (other than an amount based on a fixed percentage or percentages of gross receipts or gross sales). Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under this Lease and for compliance with all of its other obligations as tenant under this Lease. Landlord’s acceptance of Base Rent, Additional Rent or any other sum from any assignee, sublessee, transferee, mortgagee or encumbrance holder shall not be deemed to be Landlord’s approval of any such conveyance. Upon the occurrence of an Event of Default, if the Premises or any part of the Premises are then subject to an assignment or subletting, Landlord may, at its option, collect directly from such assignee or subtenant all rents becoming due to Tenant under such assignment or sublease and apply such rents against any sums due to Landlord from Tenant under this Lease. No such collection shall be construed to constitute a novation or release of Tenant from the further performance of Tenant’s obligations under this Lease. Landlord’s right of direct collection shall be in addition to and not in limitation of any other rights and remedies provided for in this Lease or at law. Tenant makes an absolute assignment to Landlord of such assignments and subleases and any rent, Lease Security Deposits and other sums payable under such assignments and subleases as collateral to secure the performance of the obligations of Tenant under this Lease.
LANDLORD'S RIGHT OF ACCESS Landlord shall have the right with reasonable prior notice to Tenant and at times reasonably convenient to Landlord and Tenant, and accompanied by a representative of Tenant to make access available to prospective or existing mortgagees or purchasers of any part of the Shopping Center or to inspect the Premises to determine if repairs are required. If repairs are required to be made by Tenant pursuant to the terms hereof, Landlord may by notice demand that Tenant make the same forthwith, and if Tenant refuses or neglects to commence such repairs and complete the same with reasonable dispatch, after such demand, Landlord may (but shall not be required to do so) make or cause such repairs to be made (at such times and in such manner as to minimize any interference with Tenant's business operations in the Premises), and the Landlord shall not be responsible for any loss or damage to Tenant's business by reason thereof except if such loss or damage arises out of the negligence of Landlord as provided herein. If Landlord makes or causes such repairs to be made, Tenant agrees that it will forthwith, on demand, pay to Landlord the reasonable cost thereof, and if it shall default in such payment, Landlord shall have the remedies provided for the non-payment of rent or other charges payable hereunder. Likewise, if any repairs are required to be made by Landlord under the terms of this Lease, and it fails or refuses to make such repairs, within a reasonable time after notice from Tenant of the need for such repairs, then Tenant shall have the right to make such required repairs in which event Landlord agrees that it will on demand pay to the Tenant the cost thereof. In the event of an emergency where something is required to be done forthwith in order to avoid damage, either party shall have the foregoing right of self-help without the requirement of formal notice; however, this emergency right as well as the foregoing right of self-help shall be carefully and judiciously exercised by either party, it being understood and agreed that wherever possible, the party initially responsible for taking such action should be given sufficient opportunity so to do in order to avoid any conflict with respect to whether or not self-help should have been invoked or with respect to the reasonableness of the expenses thus incurred.
Condition of Subleased Premises (a) Subtenant shall maintain and repair the Subleased Premises in a manner consistent with Sublandlord’s obligations under the Lease. Sublandlord shall have the right to enter the Subleased Premises from time to time upon reasonable prior notice to Subtenant, during normal business hours and escorted by Subtenant (if Subtenant makes such escort reasonably available). Sublandlord’s right of entry shall include the right of inspection to confirm that Subtenant is in compliance with all applicable maintenance and repair obligations set forth in the Lease. In the event that Sublandlord determines, in Sublandlord’s reasonable opinion, that Subtenant is in default of any maintenance and/or repair obligation set forth in the Lease, and such default may incur liability to Sublandlord upon the surrender of the Subleased Premises upon the expiration or earlier termination of the Lease (a “Required Repair Item”), then Sublandlord shall have the right to notify Subtenant of any such Required Repair Items. Subtenant shall be obligated to cure such Required Repair Items within thirty (30) days of such notice from Sublandlord, or, if such Required Repair Items cannot be reasonably completed in such thirty (30) day period, such longer period as reasonably necessary to cure such Required Repair Items, so long as Subtenant has commenced such cure and diligently pursues such cure to completion. In no event shall Sublandlord’s rights hereunder impose any additional and/or greater repair or maintenance standards from those set forth in the Lease. In the event Subtenant fails to cure such Required Repair Items as set forth above, then such failure shall be deemed a default under this Sublease, entitling Sublandlord to exercise any of its rights and remedies herein, including, without limitation, the self help rights set forth in Section 6(b) above.
