MERGER OF THIS LEASE OR OF
THE LEASEHOLD ESTATE HEREBY CREATED WITH THE FEE ESTATE OR ANY LEASEHOLD ESTATE
IN THE PROPERTY BY REASON OF THE FACT THAT THE SAME PERSON ACQUIRES OR HOLDS,
DIRECTLY, THIS LEASE OR THE LEASEHOLD ESTATE HEREBY CREATED OR ANY INTEREST
HEREIN OR IN SUCH LEASEHOLD ESTATE AS WELL AS THE FEE ESTATE OR ANY LEASEHOLD
ESTATE IN THE PROPERTY.
143
ARTICLE XXVII
ENCUMBRANCES
SECTION 27.1
ENCUMBRANCES.
TENANT WILL NOT, WITHOUT THE CONSENT OF
LANDLORD, WHICH CONSENT LANDLORD MAY WITHHOLD IN ITS SOLE AND ABSOLUTE
DISCRETION (EXCEPT IN RESPECT OF UTILITY OR COMPARABLE EASEMENTS NECESSARY FOR
THE DAY-TO-DAY OPERATION OF THE DEMISED PREMISES AND THE COMMON ELEMENTS, IN
WHICH CASE LANDLORD'S CONSENT SHALL NOT BE UNREASONABLY WITHHELD), IMPOSE ANY
RESTRICTIVE COVENANTS, LIENS OR ENCUMBRANCES UPON THE DEMISED PREMISES AND THE
COMMON ELEMENTS OR ANY PART THEREOF.
NOTHING IN THE FOREGOING SHALL RESTRICT
TENANT'S RIGHT TO ENCUMBER THE LEASEHOLD ESTATE IN THE DEMISED PREMISES AND THE
COMMON ELEMENTS CREATED HEREBY IN ACCORDANCE WITH THE TERMS HEREOF.
144
ARTICLE XXVIII
CONSENTS; APPROVALS
SECTION 28.1
REASONABLE STANDARD.
WHEREVER IT IS SPECIFICALLY PROVIDED
IN THIS LEASE THAT LANDLORD'S OR TENANT'S CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, LANDLORD OR TENANT, AS APPLICABLE, MUST BE REASONABLE IN GRANTING ITS
CONSENT AND A RESPONSE TO A REQUEST FOR SUCH CONSENT SHALL NOT BE UNREASONABLY
DELAYED OR CONDITIONED.
IF A REQUEST IS RECEIVED IN WRITING BY LANDLORD OR
TENANT FOR A CONSENT OR APPROVAL REQUIRED UNDER THIS LEASE OR FOR INFORMATION TO
WHICH THE PARTY MAKING SUCH REQUEST SHALL BE ENTITLED, THE PARTY RECEIVING SUCH
REQUEST SHALL ACT WITH REASONABLE PROMPTNESS THEREON AND SHALL NOT UNREASONABLY
DELAY NOTIFYING THE PARTY MAKING SUCH REQUEST AS TO THE GRANTING OR WITHHOLDING
OF SUCH CONSENT OR APPROVAL OR FURNISHING TO SUCH PARTY THE INFORMATION
REQUESTED.
EXCEPT WHERE IT IS SPECIFICALLY PROVIDED IN THIS LEASE THAT
LANDLORD'S CONSENT SHALL NOT BE UNREASONABLY WITHHELD, WHENEVER LANDLORD'S
CONSENT OR APPROVAL SHALL BE REQUIRED HEREUNDER FOR ANY MATTER, THE DECISION AS
TO WHETHER OR NOT TO CONSENT TO OR APPROVE THE SAME SHALL BE IN THE SOLE
DISCRETION OF LANDLORD.
SECTION 28.2
NO DAMAGES.
TENANT HEREBY WAIVES ANY CLAIM FOR DAMAGES
AGAINST LANDLORD WHICH IT MAY HAVE BASED UPON ANY ASSERTION THAT LANDLORD HAS
UNREASONABLY WITHHELD OR UNREASONABLY DELAYED ANY CONSENT THAT, PURSUANT TO
SPECIFIC PROVISIONS OF THIS LEASE, IS NOT TO BE UNREASONABLY WITHHELD OR
OTHERWISE TO ACT REASONABLY IN THE PERFORMANCE OF LANDLORD'S OBLIGATIONS, EXCEPT
WHERE LANDLORD HAS WITHHELD SUCH CONSENT DUE TO LANDLORD'S BAD FAITH OR IN AN
ARBITRARY AND CAPRICIOUS MANNER (AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION AFTER ALL PERMITTED APPEALS TAKEN).
IN ANY SUCH CASE, TENANT'S
SOLE REMEDY SHALL BE AN ACTION OR PROCEEDING TO ENFORCE ANY SUCH PROVISION OR
FOR SPECIFIC PERFORMANCE, INJUNCTION OR DECLARATORY JUDGMENT.
TENANT AGREES
THAT IF TENANT SHALL REQUEST SUCH A CONSENT FROM LANDLORD AND LANDLORD SHALL
FAIL OR REFUSE TO GIVE SUCH CONSENT OR SHALL DELAY THE GIVING OF SUCH CONSENT,
TENANT SHALL NOT BE