ASSIGNMENT AND SUBLETTING
14.1 Transfer By Tenant: The following provisions shall apply to any assignment, subletting or other transfer by Tenant or any subtenant or assignee or other successor in interest of the original Tenant (collectively referred to in this ¶14.1 as Tenant):
A. Tenant shall not do any of the following (collectively referred to herein as a Transfer), whether voluntarily, involuntarily or by operation of law, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed: (i) sublet all or any part of the Premises or allow it to be sublet, occupied or used by any person or entity other than Tenant or assign its interest in this Lease; or (ii) amend, terminate, or modify an assignment, sublease or other transfer that has been previously approved by Landlord. In no event shall Tenant mortgage or encumber the Lease (or otherwise use the Lease as a security device). Notwithstanding the foregoing, however, neither an assignment of the Premises to a transferee which is the resulting entity of a merger or consolidation of Tenant with another entity, nor an assignment or subletting of all or a portion of the Premises to an affiliate of Tenant (an entity which is controlled by, controls, or is under common control with, Tenant), shall be deemed a Transfer, provided that Tenant notifies Landlord in writing at least thirty days in advance of any such assignment or sublease, and promptly supplies Landlord with any documents or information reasonably requested by Landlord regarding such Transfer or transferee, that the tangible net worth of such transferee is not less than Tenants net worth as of the date of this Lease, and that such assignment or sublease is not a subterfuge by Tenant to avoid its obligations under this Lease. Any attempted Transfer without Landlords consent shall constitute an Event of Tenants Default and shall be voidable at Landlords option. No Transfer, even with the consent of Landlord, shall relieve Tenant of its personal and primary obligation to pay the rent and to perform all of the other obligations to be performed by Tenant hereunder. Tenant shall reimburse Landlord for all reasonable costs, expert consultants fees, and attorneys fees in connection with the processing and/or documentation of a requested Transfer, whether or not Landlords consent is given.
B. At least 30 days before a proposed Transfer is to become effective, Tenant shall give Landlord written notice of the proposed terms of such Transfer and request Landlords approval, which notice shall include the name and legal composition of the proposed transferee, a current financial statement and financial statements of the transferee covering the preceding three years if the same exist, all of which statements prepared in accordance with generally accepted accounting principles, the nature of the proposed transferees business to be carried on in the Premises, and the form of Transfer agreement to be used. Tenant shall provide to Landlord such other information as may be reasonably requested by Landlord, and Tenant shall immediately notify Landlord of any material modification to the proposed terms of such Transfer.
C. If Landlord consents to a Transfer proposed by Tenant, Tenant may enter into such Transfer, and if Tenant does so, the following shall apply:
(1) Tenant shall not be released of its liability for the performance of all of its obligations under the Lease.
(2) If Tenant assigns its interest in this Lease, then Tenant shall pay to Landlord 50% of all Subrent (as defined in ¶14.1(C(4)) received by Tenant over and above (i) the assignees agreement to assume the obligations of Tenant under this Lease, and (ii) all Permitted Transfer Costs related to such assignment. In the case of assignment, the amount of Subrent owed to Landlord shall be paid to Landlord on the same basis, whether periodic or in lump sum, that such Subrent is paid to Tenant by the assignee.
(3) If Tenant sublets any part of the Premises, then with respect to the space so subleased, Tenant shall pay to Landlord 50% of the positive difference, if any, between (i) all Subrent paid by the subtenant to Tenant, less (ii) the sum of all Base Monthly Rent and Additional Rent allocable to the space sublet and all Permitted Transfer Costs related to such sublease. Such amount shall be paid to Landlord on the same basis, whether periodic or in lump sum, that such Subrent is paid to Tenant by its subtenant. In calculating Landlords share of any periodic payments, all Permitted transfer Costs shall be first recovered by Tenant.
(4) As used in this ¶14.1C, the term Subrent shall mean any consideration of any kind received, or to be received, by Tenant as a result of the Transfer, if such sums are related to Tenants interest in this Lease or in the Premises, including payments from or on behalf of the transferee (in excess of the book value thereof) for tenants assets, fixtures, leasehold improvements, inventory, accounts, goodwill, equipment, furniture, and general intangibles. As used in this ¶14.1C, the term Permitted Transfer Costs shall mean (i) all reasonable leasing commissions paid to third parties not affiliated with Tenant in order to obtain the Transfer in question, and (ii) all reasonable attorneys fees incurred by Tenant with respect to the Transfer in question.
D. In the event of a proposed assignment or subletting, Landlord shall also have the right by notice to Tenant, to terminate this Lease in the event of an assignment as to all of the Premises and, in the event of a sublease, as to the subleased portion of the Premises and to require that all or part, as the case may be, of the Premises be surrendered to Landlord for the balance of the Lease Term (collectively Recapture the Lease). Notwithstanding the previous sentence, if, before entering into a proposed assignment or sublease, Tenant gives written notice to Landlord of Tenants intention to sublease or assign, and Landlord does not within fifteen (15) business days after Landlords actual receipt of such written notice and all information requested by Landlord relating to such proposed assignment or subletting, inform Tenant that Landlord intends to Recapture the Lease, then Landlord may not Recapture the Lease by reason of such proposed assignment or subletting, provided that: (i) if Landlord consents to the proposed assignment or subletting, Tenant shall complete such assignment or sublease within one hundred twenty (120) days after the end of such fifteen (15) day period, and (ii) nothing contained in this Section 14.1D shall be deemed to waive any of Landlords rights to approve or disapprove a Transfer as provided in this Section 14.1.
15.1 Landlords Right to Enter: Landlord and its agents may enter the Premises at any reasonable time after giving reasonable telephonic notice to Tenant (and immediately in case of emergency) for any reasonable purpose including, without limitation, making repairs, showing the Premises to prospective purchasers, mortgagees or tenants and posting upon the Premises notices or ordinary for lease signs or for sale signs. Landlord shall have the right to use any and all means Landlord may deem necessary and proper to enter the Premises in an emergency. Any entry into the Premises obtained by Landlord in accordance with this ¶15.1 shall not be forcible or unlawful entry into, or a detainer of, the Premises, or an actual or constructive eviction of Tenant from the Premises.