|
EXHIBIT I
<br />proposed assignee; or (a) terminate this Lease hi Its entirety or as to the portion of the Premises subject to the proposed Transfer, with a prop ort aide
<br />Adjustment in the Ron payablehereunder ifihts Lease is terrains led as to less dtan all of lice Premises, For the avoidance of doubt, ill is Steal n I
<br />shall not apply to any Permitted Sublease.
<br />11.4 Landlord's CAnsent' Shindm•fls.
<br />11.4.1 If Lundlord does not exercise any of lie options described in Bandon 11.3 above, then within twenty (20) business days
<br />following its receipt orn Transfer Notice (and all oFthe older items described In 2clon 11.2 above), Landlord shall rally, Tenant whether It will
<br />grant or withhold its consent to the proposed Transfer in accordance with ecton IA below, LAndlord's consent to any proposed Transfer shall not
<br />be unreasonably withheld; provided, however, dial in addition to any other grounds available hereunder or under applicable LAW for proporly
<br />withholding consent to such proposed Transfer, Tenant acknowledges and agrees that it shall be reasonable for Landlord to withhold Its consent to
<br />nay proposed Transfer it (a) hi Landlord's good fell]) judgment: (1) the proposed Transferee does not have tie financial strength (taking into
<br />Account all orthe Transferee's alheractual or potential obligations and liabilities) to perform Its obligations with respect to the proposed Transfer (or
<br />otherwise does not satisfy Landlord's standards for financiat standing with respect to tenants under direct leases of comparable economic scope), (11)
<br />the proposed Transferee is or a character or reputation orengaged In a business which is not consistent will the quality of the Project no the business
<br />and operations of ilia proposed Transferee are not of comparable quallty to the business and operations being conducted by direct tenants of Landlord
<br />In the Project or (Ili) the use of the Premises, the Building o, the Project by the proposed Transferee would: (A) significantly increase pedestrian
<br />traffic in and out of the Building and/or die Project, (B) generate increased loler(ng in Common Areas, (C) increase security risk, or (D) require any
<br />alterations to tie Building or the Project to comply with applicable Laws; (b) the proposed Transferee has the power of eminent domain, is a
<br />governmental agency or an agency or subdivision of a foreign government; (a) the proposed Transferee intends to use any part of the Promises for a
<br />purpose not permitted under this Lease; (d) either the proposed Transt'cree, or any person which directly or indirectly controls, Is controlled by, or is
<br />under common control with die proposed Transferee (i) occupies space in die Project at- has negotiated with Landlord within the preceding one
<br />hundred eighty (180) days (or is currently negotiating with landlord) to lease space in the Project or (11) is a direct competitor of Landlord; (a) An
<br />Event of Default then exists; (1) the proposed Transfer would cause Landlord to be In violation of another lease or agreement to which Landlord is a
<br />party or would give an occupant of the Project a right to cancel or modify Its lease; (g) any ground lessor or mortgagee whose consent to such
<br />Transfer Is required fails to consent thereto; (h) the terms of ilia proposed Transfer will allow the Transferee to exercise a right of renewal, right of
<br />expansion, right of flml offer, or other similar rights held by Tenant (or will Allow the Transferee to occupy space leased by Tenant pursuant to any
<br />such right); (1) the proposed Transfer would be on economic temps (based upon effective rental rates) more favorable to die Transferee than the
<br />economic terms then being owepled by Landlord for comparable direct leasing transactions In the Project; or 0) the proposed Transfer would result
<br />in more than three subleases per each full Floor of Ilia Premises being in effect at nay one time during the Term. For die avoidance of doubt, this
<br />Section 11.4.1 shall not apply to any Permitted Sublease
<br />11.4.2 Notwithstanding anything to die contrary in this Lease, iffenan( or any proposed Transferee claims that Landlord has
<br />unreasonably withheld its consent or otherwise acted in a manner not permitted under this Article 1 I then the sole remedy of Tenant and such
<br />proposed Transferee if such claim is determined by a court of competent jurisdiction to be successful shall be a deulaatory judgment and an
<br />injunction for the rellarsought without any monetary damages cr other monetary relief. To the MAX inwm extent permitted by Law, Tenant and each
<br />proposed Transferee hereby waive any and all other ramedies, including, without lindhalon, tiny right at law or equity to terminate this Lease with
<br />respect to any such claim. Tenant shall indemnity, defend, protect and hold harmless Landlord from any and all Claims involving or assartad by any
<br />third party or parties (Including, without limitation, Tenant's proposed Transferee And/or any broker representing Tenant Molitor such Transferee in
<br />connection with a proposed Transfer) ciniming they wen damaged by Landlord's wrongful withholding or delaying of consent to any proposed
<br />Transfer or other breach orthis Article 11, Tenant acknowledges that Tenants rights under this Article 1 I satisfy the conditions set loth In Section
<br />1951.4 ordure California Civil Code with respect to die availability in Landlord ofceruin remedies for a default by TenAnl undorlhis Lease,
<br />11,5 'rrnnsfLr )"roltts, subject to the provisions of this Article I i if Landlord consents to any Translar (other than A Permitted
<br />Sublease), Tenant shall pay to Landlord flay percent (50%) of any Transfer Protls. Tenant shall provide Landlord with a detailed statement setting
<br />forth the calculation of any Transfer Profits that Tenant either has or will derive item a Transfer, Landlord or its mpresouative shall have the right at
<br />all reasonable times to audit die books and records of Tenant with respect to the calculation al Transfer Profits, I f such Inspection MVe119 An
<br />underpayment by Tenant of Transfer Profits, Tenant shall pay to Landlord the defrcbricy and die cost of Landlord's audit within tan (10) business
<br />days after its receiptofthe resultsof such audit. Forlhe avoidance ofdodit, this Section 11.5 shall not apply to any Permitted Sublease
<br />114 Landlord's Casts, With respect to each Transfer (colter than a Permitted Sublease) proposed to be consummated by Tenant,
<br />whether or not Landlord shall grant consent, and whether at, not Landlord's consent shall be required, Tenant snail, within ten (10) business days
<br />slier written request by Landlord, reimburse all ol'Landlord's Review Expenses relating to such proposed Transfer. For the avoidance of doubt, this
<br />Section 11.6 shall not apply to any Permitted Sublease
<br />11.7 Continutnn Liabilityof'fennnt. Nolwilludanding the consununation or attempted consummation of any Tma9fer under this
<br />Article I), (including. but not limited to, any assignment ot'this Lease), Tenant shall remain us fully and primarily liable for the payment argent and
<br />for ilia pmronnanoe orall Other obligations orthe "Tenant" contained in this Lease to the some extentus il'Ihe Transfer tied not occurred, Any net or
<br />omission Array Trnnsfome flint violates the terms orthis Lease shall be decried a detbull by Tenant under this Lease. and hallowing expiration orthe
<br />applicable notice and ewe perlod, shall be deemed an Event of Default, in which case. Landlord may proceed directly against Original Tenant (and/or
<br />Any of its successors As the Tenant" hereunder) without the nceesgi(y of cehaustiug its rcnmedics against such Transferee (notwithstanding the filet,
<br />tint die Original Tenant (And/or any or its successurs Its ilia "Tenant" hereunder) may have assigned all of ils right, title and Interest In this Lease).
<br />Letdlord may consanL Io subsequent Transfers of Ibis Lease Willi Trnnsievru s of Tcnunl, upon notice to 'Tenant. but without obtaining its or their
<br />consent thereto, and such action shall not relieve Tenant orits liability trader this Lease.
<br />I I.R N;m-1V;tivcr. The consent by Landlord to Any Transfer shall not rclicvc Tenant, or uny Person chilling through or under
<br />Temnt, of the obligation to obtain die consent of Landlord, pursuant am this Article 11. to Any further Trauslbr. rollowiug tiny Transfer, Landlord
<br />may collect [ten( fi•om the Tronsfiallo without waiving nay rights hereunder. And cniloclton Ofthe Roll tivm a Person other than Tenant shall not he
<br />$01 W CA* i t •
<br />80A-339
<br />
|