Assignment and Subleasing. a. Tenant shall not assign, pledge, mortgage or otherwise transfer or encumber this Lease, nor sublet all or any part of the Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. In the event Tenant desires to assign this Lease or let or sublet the whole or any part of the Premises, Tenant shall make a request in writing to Landlord of its intention to do so to Landlord, together with: (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals of the proposed assignee or subtenant; and (iii) financial statements and bank and other financial and business references of the proposed assignee or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenant. Landlord shall respond to Tenant within 10 Business Days of receipt of Tenant’s request. If Landlord consents to Tenant’s request to sublease or assign this Lease, Landlord shall be provided with a copy of the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due to Landlord pursuant to this Lease, less the amount of real estate brokerage commissions and other costs and expenses reasonably related to the assignment or sublease (all prorated over the term of the assignment or sublease) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental of any Tenant furniture, fixtures, equipment and other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay to Landlord the sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or sublease of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld therefor. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further assignment, subletting, or other transfer. b. Without limitation, each of the following shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer. c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee, transferee, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease. d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and 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. e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 3 contracts
Sources: Lease Agreement (Pactiv Evergreen Inc.), Lease Agreement (Reynolds Group Holdings LTD), Lease Agreement (Reynolds Consumer Products Inc.)
Assignment and Subleasing. a. (a) Tenant shall may not assign, mortgage, pledge, mortgage encumber or otherwise transfer or encumber this Lease, nor sublet all or any part of interest hereunder, or sublet the Premises Demised Premises, in whole or permit in part, without on each occasion first obtaining the same to be occupied or used by anyone other than Tenant or its employees without the prior express written consent of Landlord, which consent Landlord shall not unreasonably withhold. Any change in control of Tenant resulting from a merger, consolidation, stock transfer or asset sale shall be unreasonably withheldconsidered an assignment or transfer which requires Landlord's prior written consent. For purposes of this Section 29, conditioned by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord reasonably determines (i) that the prospective assignee or delayed. In subtenant is not of a financial strength similar to Tenant as of the event Lease Date, (ii) that the prospective assignee or subtenant has a poor business reputation, (iii) that the proposed use of the Demised Premises by such prospective assignee or subtenant (including, without limitation, a use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Building or the Project or (iv) that the prospective assignee or subtenant is a bona-fide third-party prospective tenant.
(b) If Tenant desires to assign this Lease or let or sublet the whole Demised Premises or any part of the Premisesthereof, and such transfer requires Landlord's consent hereunder, Tenant shall make a request give Landlord written notice no later than thirty (30) days in writing to Landlord advance of its intention to do so to Landlordthe proposed effective date of any proposed assignment or sublease, together with: specifying (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals business of the proposed assignee or subtenant; sublessee, (ii) the amount and location of the space within the Demised Premises proposed to be subleased, (iii) the proposed effective date and duration of the assignment or subletting and (iv) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and bank and other financial and business references of information as Landlord may reasonably request to evaluate the proposed assignee assignment or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenantsublease. Landlord shall respond to Tenant within 10 Business Days have a period of twenty (20) days following receipt of such notice and other information requested by Landlord within which to notify Tenant in writing that Landlord elects: (i) to permit Tenant to assign or sublet such space; provided, -------- however, that, if the rent rate agreed upon between Tenant and its proposed ------- subtenant is greater than the rent rate that Tenant must pay Landlord hereunder for that portion of the Demised Premises, or if any consideration shall be promised to or received by Tenant that is attributable to such proposed assignment or sublease (in addition to rent), then one half (1/2) of such excess rent and other consideration (after payment of brokerage commissions, advertising expenses, improvement allowances, attorneys' fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord) shall be considered Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent and, in the case of any other consideration, within ten (10) business days after receipt thereof by Tenant’s request; or (ii) to refuse, in Landlord's reasonable discretion (taking into account all relevant factors including, without limitation, the factors set forth in the Section 29(a) above), to consent to Tenant's assignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Demised Premises. If Landlord consents should fail to Tenant’s request to sublease or assign this Leasenotify Tenant in writing of such election within the aforesaid twenty (20) day period, Landlord shall be provided deemed to have elected option (ii) above. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with a copy of any requested assignment or subletting (not to exceed $1,500 per request), and such payments shall not be deducted from the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due Additional Rent owed to Landlord pursuant to this Lease, less the amount subsection (ii) above. Tenant shall deliver to Landlord copies of real estate brokerage commissions and other costs and expenses reasonably related to the all documents effectuating any permitted assignment or sublease subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require such assignee to assume performance of all terms of this Lease on Tenant's part to be performed.
(all prorated over the term of the assignment or subleasec) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental No acceptance by Landlord of any Tenant furniturerent or any other sum of money from any assignee, fixtures, equipment and sublessee or other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord shall not relieve Tenant from all category of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request transferee shall be deemed withheldto constitute Landlord's consent to any assignment, sublease, or transfer. Upon any request to assign Permitted subtenants or sublet, Tenant will pay assignees shall become liable directly to Landlord the sum equal to for all obligations of Landlord’s costsTenant hereunder, including reasonable attorney’s feeswithout, incurred in investigating and considering any proposed or purported assignment or sublease however, relieving Tenant of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforits liability hereunder. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further No such assignment, subletting, occupancy or other transfer.
b. Without limitation, each of the following collection shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an the assignee, transfereetenant or occupant, as Tenant, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance by Tenant of Tenant’s 's obligations under this Lease. Any assignment or sublease consented to by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord's consent to any subsequent assignment or sublease.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Assignment and Subleasing. a. Tenant shall Except as provided in Paragraph 24(a) of the Prime Lease and in this Paragraph 8, Subtenant may not assign, pledge, mortgage or otherwise transfer assign or encumber this LeaseSublease, nor and may not sublet all or any part of the Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. In the event Tenant desires to assign this Lease or let or sublet the whole or any part all of the Premises, Tenant without the written consent of Prime Landlord and Sublandlord first had and obtained, which consent Sublandlord shall make a request not unreasonably withhold, condition or delay. Notwithstanding anything in writing Paragraph 24 of the Prime Lease or this Sublease to Landlord the contrary, Subtenant may assign this Sublease in its entirety or sublease all or any portion of its intention the Premises without the consent or approval of Sublandlord to do so to Landlord, together with: (i) a copy of the proposed agreement of assignment any partnership, corporation or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assigneeother business entity which controls, or is controlled by or is under common control with Subtenant; (ii) the names and addresses any partnership, corporation or other business entity into or with which Subtenant shall be merged, converted, or consolidated or to which substantially all of the principals Subtenant's assets or stock may be transferred, or to a related partnership, corporation or other business entity of the proposed assignee or subtenantSubtenant herein named; and (iii) financial statements a partnership, corporation or other business entity which is a direct successor of Subtenant owning substantially all of Subtenant's business and bank assets. Sublandlord shall be entitled to all "Excess Rent" received by Subtenant in connection with an assignment or sublet. As used herein, the term "Excess Rents" shall mean all rents and other financial and business references of consideration payable by a subtenant or assignee to Subtenant in connection with the proposed assignee or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenant. Landlord shall respond to Tenant within 10 Business Days of receipt of Tenant’s request. If Landlord consents to Tenant’s request to sublease or assign this Lease, Landlord shall be provided with a copy of the fully executed sublease or assignment and shall receive 50% in excess of the amount, if any, which all rent or other consideration received Rent payable by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due to Landlord pursuant to this LeaseSubtenant hereunder, less the amount of real estate brokerage commissions and other costs and expenses reasonably related incurred by Subtenant to effect the assignment or sublease (all prorated over the term of the assignment or sublease) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental of any Tenant furniture, fixtures, equipment and other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request shall be deemed withheld. Upon any request to assign or subletassignment, Tenant will pay to Landlord the sum equal to all of Landlord’s including, without limitation, brokerage commissions, legal fees, refurbishment and redecorating costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or sublease the cost of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforall unamortized improvements installed by Subtenant. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further assignment, subletting, or other transfer.
b. Without limitation, each of the following Nothing herein shall be deemed to be permit Subtenant to pay to Sublandlord less than the Rent due under this Sublease in the event of an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee, transferee, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and 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.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Assignment and Subleasing. a. (a) Tenant shall may not assign, mortgage, pledge, mortgage encumber or otherwise transfer or encumber this Lease, nor sublet all or any part of interest hereunder, or sublet the Premises Demised Premises, in whole or permit in part, without on each occasion first obtaining the same to be occupied or used by anyone other than Tenant or its employees without the prior express written consent of Landlord, which consent Landlord shall not unreasonably withhold. Any change in control of Tenant resulting from a merger, consolidation, stock transfer or asset sale shall be unreasonably withheldconsidered an assignment or transfer which requires Landlord’s prior written consent. For purposes of this Section 29, conditioned by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee or delayed. In subtenant is not of a financial strength similar to Tenant as of the event Lease Date, (ii) that the prospective assignee or subtenant has a poor business reputation, (iii) that the proposed use of the Demised Premises by such prospective assignee or subtenant (including, without limitation, a use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Building or the Project or (iv) that the prospective assignee or subtenant is a current tenant in the Project or is a bona-fide third-party prospective tenant.
(b) If Tenant desires to assign this Lease or let or sublet the whole Demised Premises or any part of the Premisesthereof, Tenant shall make a request give Landlord written notice no later than forty-five (45) days in writing to Landlord advance of its intention to do so to Landlordthe proposed effective date of any proposed assignment or sublease, together with: specifying (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals business of the proposed assignee or subtenant; sublessee, (ii) the amount and location of the space within the Demised Premises proposed to be subleased, (iii) the proposed effective date and duration of the assignment or subletting and (iv) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and bank other information as Landlord may reasonably request to evaluate the proposed assignment or sublease. Landlord shall have a period of thirty (30) days following receipt of such notice and other financial and business references information requested by Landlord within which to notify Tenant in writing that Landlord elects: (i) to terminate this Lease as to the space so affected as of the proposed assignee effective date set forth in Tenant’s notice, in which event Tenant shall be relieved of all further obligations hereunder as to such space, except for obligations under Sections 11 and 28 and all other provisions of this Lease which expressly survive the termination hereof; or (ii) to permit Tenant to assign or sublet such space; provided, however, that, if the rent rate agreed upon between Tenant and its proposed subtenant reasonably sufficient to enable is greater than the rent rate that Tenant must pay Landlord to ascertain the financial responsibility hereunder for that portion of the Demised Premises, or if any consideration shall be promised to or received by Tenant in connection with such proposed assignee assignment or subtenant. Landlord sublease (in addition to rent), then one half (1/2) of such excess rent and other consideration (after payment of brokerage commissions, attorneys’ fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord) shall respond be considered Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent and, in the case of any other consideration, within 10 Business Days of ten (10) business days after receipt of thereof by Tenant; or (iii) to refuse, in Landlord’s reasonable discretion (taking into account all relevant factors including, without limitation, the factors set forth in the Section 29(a) above), to consent to Tenant’s requestassignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Demised Premises. If Landlord consents should fail to Tenant’s request to sublease or assign this Leasenotify Tenant in writing of such election within the aforesaid thirty (30) day period, Landlord shall be provided deemed to have elected option (iii) above. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with a copy of any requested assignment or subletting, and such payments shall not be deducted from the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due Additional Rent owed to Landlord pursuant to this Lease, less the amount subsection (ii) above. Tenant shall deliver to Landlord copies of real estate brokerage commissions and other costs and expenses reasonably related to the all documents executed in connection with any permitted assignment or sublease subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require such assignee to assume performance of all terms of this Lease on Tenant’s part to be performed.
(all prorated over the term of the assignment or subleasec) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental No acceptance by Landlord of any Tenant furniturerent or any other sum of money from any assignee, fixtures, equipment and sublessee or other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord category of transferee shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects be deemed to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, constitute Landlord’s consent to such sublease any assignment, sublease, or assignment request transfer. Permitted subtenants or assignees shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay become liable directly to Landlord the sum equal to for all obligations of Landlord’s costsTenant hereunder, including reasonable attorney’s feeswithout, incurred in investigating and considering any proposed or purported assignment or sublease however, relieving Tenant of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforits liability hereunder. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further No such assignment, subletting, occupancy or other transfer.
b. Without limitation, each of the following collection shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an the assignee, transfereetenant or occupant, as Tenant, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance by Tenant of Tenant’s obligations under this Lease. Any assignment or sublease consented to by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord’s consent to any subsequent assignment or sublease.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Assignment and Subleasing. a. Tenant (a) Subtenant shall not assignhave the right to assign this Sublease or sublet the Subleased Premises, pledgein whole or in part, mortgage or otherwise transfer or encumber this Lease, nor sublet all or any part of the Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without the express prior written consent of LandlordSublandlord, which consent shall not be unreasonably withheld, conditioned or delayeddelayed provided that Prime Landlord consents to such assignment or sublease. Subtenant’s right to assign or sublet is subject to Prime Landlord’s recapture right pursuant to subparagraph 12.1 of the Prime Lease.
(b) The consent by Sublandlord to any assignment or to any sublease or occupancy of the Subleased Premises by any other party than Subtenant, or any part thereof, shall not be deemed to relieve or release (i) Subtenant from the full performance and observance by Subtenant of all of its obligations under this Sublease, or (ii) Subtenant or any assignee or sublessee of Subtenant from the obligation of obtaining the consent in writing of Sublandlord and Prime Landlord to any further assignment, sublease or occupancy. Subtenant shall pay to Sublandlord upon demand, (x) any cost, expense or fee of Prime Landlord charged to Sublandlord or to Subtenant which is required to be paid in connection with any assignment, subletting or occupancy pursuant to this Paragraph 14, and (y) any reasonable actual cost or expense of Sublandlord which is incurred by Sublandlord in connection with any request for consent to any assignment, subletting or occupancy pursuant to this Paragraph, including but not limited to attorneys’, architects’ accountants’, or other consultants’ fees.
(c) In the event Tenant desires that Subtenant shall desire Sublandlord’s consent to assign an assignment of this Lease Sublease or let or sublet the whole to a subletting of all or any part of the Subleased Premises, Tenant Subtenant shall make request such consent by submitting to Sublandlord a request in writing to Landlord of its intention to do so to Landlord, together with: (i) a copy proposal setting forth the terms and conditions of the proposed agreement of assignment or sublease wherein and financial information with respect to the proposed assignee assumes or sublessee, and such other information as Sublandlord may reasonably require.
(d) In the event that Sublandlord and Prime Landlord shall grant their consent to subletting all or part of the obligations Subleased Premises or an assignment of Tenant hereunder this Sublease, Subtenant shall, in consideration therefor, promptly pay to Sublandlord as additional rent, as and containing the name and address when received by Subtenant, fifty percent (50%) of the proposed assignee; Net Profit (ii) the names and addresses of the principals of the proposed assignee or subtenant; and (iii) financial statements and bank and other financial and business references of the proposed assignee or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenant. Landlord shall respond to Tenant within 10 Business Days of receipt of Tenant’s request. If Landlord consents to Tenant’s request to sublease or assign this Lease, Landlord shall be provided with a copy of the fully executed sublease or assignment and shall receive 50% of the amountas hereinafter defined), if any, and deliver to Sublandlord an executed copy of such assignment or sublease. The term, “Net Profit” shall mean (i) in the case of a sublease, the amount by which all the amounts payable to Subtenant by any subtenant of Subtenant for rent and additional rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than paid under the entire Premises) exceeds the rent then due to Landlord pursuant to this Lease, less the amount of real estate brokerage commissions and other costs and expenses reasonably related to the assignment or sublease (all prorated over the term of the assignment or sublease) paid to unrelated third parties, including construction and advertising expensesincluding, but not including the proceeds from limited to, sums paid for the sale or rental of any Tenant Subtenant’s fixtures, leasehold improvements, equipment, furniture, fixtures, equipment and furnishings or other personal property, provided to the extent that same such sums are sold or rented at in excess of the then bona fide fair market value thereof. Any assignment or subletting approved ) exceed the amounts payable by Landlord shall not relieve Tenant from all of its obligations Subtenant to Sublandlord for Base Rent and responsibilities under this Lease for additional rent in connection with the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay to Landlord the sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or sublease of any sublet portion of the Subleased Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld therefor. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further assignment, subletting, or other transfer.
b. Without limitation, each of the following shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) in case of an increase in the number assignment, an amount equal to any amounts paid by any assignee of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate TenantSubtenant, however accomplished and whether in a single transaction or a series of related or unrelated transactionsto Subtenant, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereofconsideration for said assignment (including, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained hereinbut not limited to, sums paid for the sale or transfer rental of a majority interest Sublandlord’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property) less, in Tenant either case, the reasonable and customary real estate brokers commissions, marketing expenses, any improvement allowance or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease other economic concession (“Permitted Transfer”planning allowance, moving expenses, etc.), if such sale paid by Subtenant to its sublessee or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled assignee and attorneys’ fees incurred by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares Subtenant in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfertherewith.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee, transferee, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and 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.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Sources: Sublease (Intersil Corp/De)
Assignment and Subleasing. a. Tenant shall not assign, pledge, mortgage assign this -------------------------- Lease Agreement in whole or otherwise transfer in part nor sublease the Facility or encumber this Lease, nor sublet all or any the Equipment in part without the prior written consents of the Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned withheld or delayed. In addition, Tenant may sublease the event Tenant desires Facility to assign this Lease one of its subsidiaries or let or sublet the whole or any part of the Premisesdivisions without Landlord's permission, provided, however, Tenant shall make a request in writing provide Landlord with prior written notice of -------- ------- such sublease. Prior to requesting the approval of Landlord to an assignment or subletting of the Facility, as hereinafter provided, Tenant shall advise Landlord of its intention to do so to Landlord, together with: (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed subtenant or assignee; (ii) the names terms, conditions and addresses consideration of the principals proposed subletting or assignment; (iii) the nature and character of the business of the proposed subtenant or assignee and of its proposed use of the Facility; and (iv) current financial information and any other information as Landlord may reasonably request with respect to the proposed subtenant or assignee. Tenant shall pay to Landlord as additional rent, within twenty day after notice and demand therefor, Landlord's reasonable attorneys' fee incurred as a result of having any proposal reviewed or consent documented. In the case of an assignment, Landlord may withhold its consent if the nature and character or the financial condition of the proposed assignee is not equal to or subtenant; and (iii) financial statements and bank and other financial and business references of the proposed assignee or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenant. Landlord shall respond to Tenant within 10 Business Days of receipt better than that of Tenant’s request. If Landlord consents to Tenant’s request In the event Tenant proposes to sublease or assign this Lease, Landlord shall be provided with a copy of the fully executed sublease or assignment and shall receive 50more than 75% of the amountFacility for all or substantially all of the duration of the Lease Term, if anyLandlord may withhold its consent and require that such transaction be structured as an assignment:
(1) No assignment or sublease shall relieve Tenant from primary liability for any of its obligations hereunder;
(2) The assignee or sublessee shall assume the obligations of Tenant hereunder to the extent of the interest assigned or subleased;
(3) Tenant shall, which all rent within ten days after the delivery thereof, furnish or cause to be furnished to the Landlord a true and complete copy of each such assignment or sublease, as the case may be, and the instrument of assumption; and
(4) Tenant shall pay to Landlord as additional rent, as and when paid by any subtenant to Tenant, one-half of any rents, additional charges or other consideration received payable under the sublease to Tenant by Tenant from such assignee or the subtenant (prorated on a square-foot basis for less than which is in excess of the entire Premises) exceeds the rent then due to Landlord pursuant to this Lease, less the amount of real estate brokerage commissions and other costs and expenses reasonably related to the assignment or sublease (all prorated over Fixed Rent accruing during the term of the assignment or sublease) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental of any Tenant furniture, fixtures, equipment and other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay to Landlord the sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or sublease of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld therefor. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further assignment, subletting, or other transfer.
b. Without limitation, each of the following shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee, transferee, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect the subleased space (at the rate per square foot payable by any agreement or stipulation made by Landlord extending Tenant hereunder) pursuant to the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Leaseterms hereof.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and 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.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Assignment and Subleasing. a. (a) Tenant shall may not assign, mortgage, pledge, mortgage encumber or otherwise transfer or encumber this Lease, nor sublet all or any part of interest hereunder, or sublet the Premises Demised Premises, in whole or permit in part, without on each occasion first obtaining the same to be occupied or used by anyone other than Tenant or its employees without the prior express written consent of Landlord, which consent Landlord shall not unreasonably withhold. Any change in control of Tenant resulting from a merger, consolidation, stock transfer or asset sale shall be unreasonably withheldconsidered an assignment or transfer which requires Landlord's prior written consent. For purposes of this Section 29, conditioned by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee or delayed. In subtenant is not of a financial strength similar to Tenant as of the event Lease Date, (ii) that the prospective assignee or subtenant has a poor business reputation, (iii) that the proposed use of the Demised Premises by such prospective assignee or subtenant (including, without limitation, a use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Building or the Project or (iv) that the prospective assignee or subtenant is a current tenant in the Project or is a bona-fide third-party prospective tenant.
(b) If Tenant desires to assign this Lease or let or sublet the whole Demised Premises or any part of the Premisesthereof, Tenant shall make a request give Landlord written notice no later than forty-five (45) days in writing to Landlord advance of its intention to do so to Landlordthe proposed effective date of any proposed assignment or sublease, together with: specifying (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals business of the proposed assignee or subtenant; sublessee, (ii) the amount and location of the space within the Demised Premises proposed to be subleased, (iii) the proposed effective date and duration of the assignment or subletting and (iv) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and bank other information as Landlord may reasonably request to evaluate the proposed assignment or sublease. Landlord shall have a period of thirty (30) days following receipt of such notice and other financial and business references information requested by Landlord within which to notify Tenant in writing that Landlord elects: (i) to terminate this Lease as to the space so affected as of the proposed assignee effective date set forth in Tenant's notice, in which event Tenant shall be relieved of all further obligations hereunder as to such space, except for obligations under Sections 11 and 28 and all other provisions of this Lease which expressly survive the termination hereof; or (ii) to permit Tenant to assign or sublet such space; provided, however, that, if the rent rate agreed upon between Tenant and its proposed subtenant reasonably sufficient to enable is greater than the rent rate that Tenant must pay Landlord to ascertain the financial responsibility hereunder for that portion of the Demised Premises, or if any consideration shall be promised to or received by Tenant in connection with such proposed assignee assignment or subtenant. Landlord sublease (in addition to rent), then one half (1/2) of such excess rent and other consideration (after payment of brokerage commissions, attorneys' fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord) shall respond be considered Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent and, in the case of any other consideration, within 10 Business Days ten (10) business days after receipt thereof by Tenant; or (iii) to refuse, in Landlord's reasonable discretion (taking into account all relevant factors including, without limitation, the factors set forth in the Section 29(a) above), to consent to Tenant's assignment or subleasing of receipt of Tenant’s requestsuch space and to continue this Lease in full force and effect as to the entire Demised Premises. If Landlord consents should fail to Tenant’s request to sublease or assign this Leasenotify Tenant in writing of such election within the aforesaid thirty (30) day period, Landlord shall be provided deemed to have elected option (iii) above. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with a copy of any requested assignment or subletting, and such payments shall not be deducted from the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due Additional Rent owed to Landlord pursuant to this Lease, less the amount subsection (ii) above. Tenant shall deliver to Landlord copies of real estate brokerage commissions and other costs and expenses reasonably related to the all documents executed in connection with any permitted assignment or sublease subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require such assignee to assume performance of all terms of this Lease on Tenant's part to be performed.
(all prorated over the term of the assignment or subleasec) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental No acceptance by Landlord of any Tenant furniturerent or any other sum of money from any assignee, fixtures, equipment and sublessee or other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord shall not relieve Tenant from all category of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request transferee shall be deemed withheldto constitute Landlord's consent to any assignment, sublease, or transfer. Upon any request to assign Permitted subtenants or sublet, Tenant will pay assignees shall become liable directly to Landlord the sum equal to for all obligations of Landlord’s costsTenant hereunder, including reasonable attorney’s feeswithout, incurred in investigating and considering any proposed or purported assignment or sublease however, relieving Tenant of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforits liability hereunder. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further No such assignment, subletting, occupancy or other transfer.
b. Without limitation, each of the following collection shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an the assignee, transfereetenant or occupant, as Tenant, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance by Tenant of Tenant’s 's obligations under this Lease. Any assignment or sublease consented to by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord's consent to any subsequent assignment or sublease.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Sources: Industrial Lease Agreement (Rockwell Medical Technologies Inc)
Assignment and Subleasing. a. Tenant shall not assign, pledge, mortgage or otherwise transfer or encumber assign this LeaseLease nor any rights hereunder, nor let or sublet all or any part of the Premises Leased Premises, nor suffer or permit any person or corporation to use any part of the same to be occupied or used by anyone other than Tenant or its employees Leased Premises, without first obtaining the express prior written consent of Landlord, which consent shall not be unreasonably withheldwithheld by Landlord. Tenant agrees to pay all reasonable attorneys' fees and costs incurred by Landlord in connection with any such proposed assignment or sublease. The transfer of any shares of stock of Tenant if Tenant is a corporation, conditioned the transfer of any partnership interest if Tenant is a partnership or delayedthe transfer of a beneficial interest in a land trust if Tenant is a land trust, shall be deemed an assignment requiring the consent of Landlord if any such transfer will effectively vest control of Tenant in an entity or person other than the entity, or person then having such control. In Tenant shall provide Landlord with notice of any such transfer of stock or interest immediately upon the event Tenant desires occurrence thereof. Should Landlord consent to assign such assignment of this Lease or let or sublet the whole to a sublease of all or any part of the Leased Premises, Tenant shall make a request in writing to Landlord does hereby guarantee payment of its intention to do so to Landlord, together with: (i) a copy all rent herein reserved and all other obligations hereunder until the expiration of the proposed agreement term hereof and no failure of Landlord to promptly collect from any assignee or sublessee or any extension of the time for the payment of such rents shall release or relieve Tenant or any guarantor from its guaranty or obligation of payment of such rents or performance of other obligations. Should Landlord consent to such assignment or sublease wherein the proposed assignee assumes sublease, all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals of the proposed assignee or subtenant; and (iii) financial statements and bank and other financial and business references of the proposed assignee or subtenant reasonably sufficient to enable Landlord to ascertain the financial responsibility of the proposed assignee or subtenant. Landlord shall respond to Tenant within 10 Business Days of receipt of Tenant’s request. If Landlord consents to Tenant’s request to sublease or assign this Lease, Landlord shall be provided with a copy of the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration amounts received by Tenant as consideration for the same, including without limitation, amounts received from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due sublessee in excess of amounts to be remitted by Tenant to Landlord pursuant hereunder, shall be the property of Landlord and delivered to this Lease, less the amount of real estate brokerage commissions and other costs and expenses reasonably related to the assignment or sublease (all prorated over the term of the assignment or sublease) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental of any Landlord by Tenant furniture, fixtures, equipment and other personal property, provided that same are sold or rented at the then bona fide market value thereofimmediately upon receipt. Any assignment or subletting approved consent by Landlord shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, Landlord’s consent to such sublease or assignment request shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay to Landlord the sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported an assignment or sublease of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld therefor. The consent by Landlord to any particular assignment, subletting or other transfer Tenant's rights hereunder shall not in any way be considered a consent effective for that transaction only. Landlord hereby expressly reserves the right to approve or disapprove all future assignments or subleases by Landlord to any other or further assignment, subletting, or other transfer.
b. Without limitation, each of the following shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant its assignee or sublessee, which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent approval shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transferunreasonably withheld.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee, transferee, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and 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.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Sources: Lease Agreement (Asconi Corp)
Assignment and Subleasing. a. (a) Except as provided in subsection (d) of this Section 29, Tenant shall may not assign, mortgage, pledge, mortgage encumber or otherwise transfer or encumber this Lease, nor sublet all or any part of interest hereunder, or sublet the Premises Demised Premises, in whole or permit in part, without on each occasion first obtaining the same to be occupied or used by anyone other than Tenant or its employees without the prior express written consent of Landlord, which consent Landlord shall not unreasonably withhold, delay or condition. Except as provided to the contrary in subsection (d), below, any change in control of Tenant resulting from a merger, consolidation, stock transfer or asset sale shall be unreasonably withheldconsidered an assignment or transfer which requires Landlord’s prior written consent. Any merger, conditioned consolidation, stock transfer or delayedasset sale affecting Tenant which meets the requirements of subsection (d), below, will not require the prior written consent of Landlord, notwithstanding that such event will constitute an assignment of this Lease by Tenant. In For purposes of this Section 29, by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the event prospective assignee or subtenant is not of a financial strength similar to Tenant as of the Lease Date, (ii) that the proposed use of the Demised Premises by such prospective assignee or subtenant (including, without limitation, a use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Building or the Project, require any alteration of the Building or the Demised Premises to comply with Governmental Requirements, materially increase the wear and tear on the Demised Premises as compared to the Permitted Use by Tenant or cause any increase in the insurance premiums payable in connection with the Building or (iii) that the prospective assignee or subtenant is a current tenant in the Project.
(b) If Tenant desires to assign this Lease or let or sublet the whole Demised Premises or any part of the Premisesthereof, Tenant shall make a request give Landlord written notice no later than forty-five (45) days in writing to Landlord advance of its intention to do so to Landlordthe proposed effective date of any proposed assignment or sublease, together with: specifying (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals business of the proposed assignee or subtenant; sublessee, (ii) the amount and location of the space within the Demised Premises proposed to be subleased, (iii) the proposed effective date and duration of the assignment or subletting and (iv) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and bank other information as Landlord may reasonably request to evaluate the proposed assignment or sublease. Landlord shall have a period of thirty (30) days following receipt of such notice and other financial and business references information requested by Landlord within which to notify Tenant in writing that Landlord elects; (i) to terminate this Lease as to the space so affected as of the proposed assignee effective date set forth in Tenant’s notice, in which event Tenant shall be relieved of all further obligations hereunder as to such space, except for obligations under Sections 11 and 28 and all other provisions of this Lease which expressly survive the termination hereof; provided however that if Landlord elects to terminate this Lease, then Tenant shall have ten (10) days within which to withdraw its request for consent in which event the Lease shall continue in full force and effect; or (ii) to permit Tenant to assign or sublet such space; provided, however, that, if the rent rate (which rate must be comparable to a bona fide arm’s length transaction) agreed upon between Tenant and its proposed subtenant reasonably sufficient to enable is greater than the rent rate that Tenant must pay Landlord to ascertain the financial responsibility hereunder for that portion of the proposed assignee Demised Premises, then one half (1/2) of such excess rent (after payment of brokerage commissions, attorneys’ fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord) shall be considered Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent; or subtenant. Landlord shall respond (iii) to Tenant within 10 Business Days of receipt of refuse, in Landlord’s reasonable discretion (taking into account all relevant factors including, without limitation, the factors set forth in the Section 29(a) above), to consent to Tenant’s requestassignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Demised Premises. If Landlord consents should fail to Tenant’s request to sublease or assign this Leasenotify Tenant in writing of such election within the aforesaid thirty (30) day period, Landlord shall be provided deemed to have elected option (iii) above. Tenant agrees to reimburse Landlord for actual and reasonable legal fees and any other actual and reasonable costs incurred by Landlord in connection with a copy of any requested assignment or subletting, and such payments shall not be deducted from the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due Additional Rent owed to Landlord pursuant to this Lease, less the amount subsection (ii) above. Tenant shall deliver to Landlord copies of real estate brokerage commissions and other costs and expenses reasonably related to the all documents executed in connection with any permitted assignment or sublease subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require such assignee to assume performance of all terms of this Lease on Tenant’s part to be performed.
(all prorated over the term of the assignment or subleasec) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental No acceptance by Landlord of any Tenant furniturerent or any other sum of money from any assignee, fixtures, equipment and sublessee or other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord category of transferee shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects be deemed to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, constitute Landlord’s consent to such sublease any assignment, sublease, or assignment request transfer. Permitted subtenants or assignees shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay become liable directly to Landlord the sum equal to for all obligations of Landlord’s costsTenant hereunder, including reasonable attorney’s feeswithout, incurred in investigating and considering any proposed or purported assignment or sublease however, relieving Tenant of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforits liability hereunder. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further No such assignment, subletting, occupancy or other transfer.
b. Without limitation, each of the following collection shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an the assignee, transfereetenant or occupant, as Tenant, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance by Tenant of Tenant’s obligations under this Lease. Any assignment or sublease consented to by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord’s consent to any subsequent assignment or sublease.
e. Any purported sale(d) Notwithstanding subsection (a) of Section 29, assignmentprovided that there is not an Event of Default under this Lease which remains uncured, mortgageTenant shall have the right, subletting upon thirty (30) days’ prior written notice to Landlord, but without the consent of Landlord (i) to sublet all or other part of the Demised Premises to any related corporation or entity which controls Tenant, is controlled by Tenant or is under common control with Tenant; or (ii) to assign this Lease to a successor entity into which or with which Tenant is merged or consolidated or which acquired substantially all of Tenant’s assets and property, provided that such successor entity assumes substantially all of the obligations and liabilities of Tenant and shall have net current assets, capitalization, tangible net worth and creditworthiness at least equal to the assets, capitalization, tangible net worth and creditworthiness of Tenant as of the Lease Date as determined by generally accepted accounting principles (the “Credit Standard”) or (iii) sell or transfer a controlling interest in the stock of Tenant, and thereby cause an assignment of this Lease by Tenant, provided that, after such sale or transfer, Tenant continues to satisfy the Credit Standard. In connection with any interest herein which does not comply with the provisions assignment of this Section 12 Lease by Tenant contemplated by this subsection (d), Tenant will provide, in its initial notice to Landlord, financial statements and other documentation which will be reasonably sufficient to enable Landlord to determine whether or not the Credit Standard will be satisfied after the assignment. For the purposes hereof (i) “control” shall mean ownership of not less than fifty percent (50%) of all the voting stock or legal and equitable interest in such corporation or entity and (ii) “tangible net worth” shall be voiddefined as the excess of the value of tangible assets (i.e. assets excluding those which are intangible such as goodwill, patents and trademarks) over liabilities and (iii) “net current assets” means only liquid assets (e.g. cash, marketable securities, accounts receivable and inventory).
Appears in 1 contract
Sources: Industrial Lease Agreement (Elevance Renewable Sciences, Inc.)
Assignment and Subleasing. a. (a) Tenant shall may not assign, mortgage, pledge, mortgage encumber or otherwise transfer or encumber this Lease, nor sublet all or any part of interest hereunder, or sublet the Premises Demised Premises, in whole or permit in part, without on each occasion first obtaining the same to be occupied or used by anyone other than Tenant or its employees without the prior express written consent of Landlord, which consent Landlord shall not unreasonably withhold. Any change in control of Tenant resulting from a merger, consolidation, stock transfer or asset sale shall be unreasonably withheldconsidered an assignment or transfer which requires Landlord’s prior written consent. For purposes of this Section 29, conditioned by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee or delayedsubtenant is not of a financial strength similar to Tenant as of the Lease Date, (ii) that the prospective assignee or subtenant has a poor business reputation, (iii) that the proposed use of the Demised Premises by such prospective assignee or subtenant (including, without limitation, a use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Building or the Project or (iv) that the prospective assignee or subtenant is a current tenant in the Project or is a bona-fide third-party prospective tenant. In the event See Special Stipulation 7 on Exhibit C hereto.
(b) If Tenant desires to assign this Lease or let or sublet the whole Demised Premises or any part of the Premisesthereof, Tenant shall make a request give Landlord written notice no later than thirty (30) days in writing to Landlord advance of its intention to do so to Landlordthe proposed effective date of any proposed assignment or sublease, together with: specifying (i) a copy of the proposed agreement of assignment or sublease wherein the proposed assignee assumes all of the obligations of Tenant hereunder and containing the name and address of the proposed assignee; (ii) the names and addresses of the principals business of the proposed assignee or subtenant; sublessee, (ii) the amount and location of the space within the Demised Premises proposed to be subleased, (iii) the proposed effective date and duration of the assignment or subletting and (iv) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and bank other information as Landlord may reasonably request to evaluate the proposed assignment or sublease. Landlord shall have a period of thirty (30) days following receipt of such notice and other financial and business references information requested by Landlord within which to notify Tenant in writing that Landlord elects: (i) to terminate this Lease as to the space so affected as of the proposed assignee effective date set forth in Tenant’s notice, in which event Tenant shall be relieved of all further obligations hereunder as to such space, except for obligations under Sections 11 and 28 and all other provisions of this Lease which expressly survive the termination hereof; or (ii) to permit Tenant to assign or sublet such space; provided, however, that, if the rent rate agreed upon between Tenant and its proposed subtenant reasonably sufficient to enable is greater than the rent rate that Tenant must pay Landlord to ascertain the financial responsibility hereunder for that portion of the Demised Premises, or if any consideration shall be promised to or received by Tenant in connection with such proposed assignee assignment or subtenant. Landlord sublease (in addition to rent), then one half (1/2) of such excess rent and other consideration (after payment of brokerage commissions, attorneys’ fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord) shall respond be considered Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent and, in the case of any other consideration, within 10 Business Days of ten (10) business days after receipt of thereof by Tenant; or (iii) to refuse, in Landlord’s reasonable discretion (taking into account all relevant factors including, without limitation, the factors set forth in the Section 29(a) above), to consent to Tenant’s requestassignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Demised Premises. If Landlord consents should fail to Tenant’s request to sublease or assign this Leasenotify Tenant in writing of such election within the aforesaid thirty (30) day period, Landlord shall be provided deemed to have elected option (iii) above. Upon request by Tenant, Landlord shall provide Tenant in writing with a copy of its reason for such refusal. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with any requested assignment or subletting, and such payments shall not be deducted from the fully executed sublease or assignment and shall receive 50% of the amount, if any, which all rent or other consideration received by Tenant from such assignee or subtenant (prorated on a square-foot basis for less than the entire Premises) exceeds the rent then due Additional Rent owed to Landlord pursuant to this Lease, less the amount subsection (ii) above. Tenant shall deliver to Landlord copies of real estate brokerage commissions and other costs and expenses reasonably related to the all documents executed in connection with any permitted assignment or sublease subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require such assignee to assume performance of all terms of this Lease on Tenant’s part to be performed.
(all prorated over the term of the assignment or subleasec) paid to unrelated third parties, including construction and advertising expenses, but not including the proceeds from the sale or rental No acceptance by Landlord of any Tenant furniturerent or any other sum of money from any assignee, fixtures, equipment and sublessee or other personal property, provided that same are sold or rented at the then bona fide market value thereof. Any assignment or subletting approved by Landlord category of transferee shall not relieve Tenant from all of its obligations and responsibilities under this Lease for the entire Premises. If Landlord objects be deemed to Tenant’s request to sublease the Leased Premises or assign this Lease, Landlord shall specify the reasons for such objection. If Landlord fails to respond to Tenant within such 10 Business Day period, constitute Landlord’s consent to such sublease any assignment, sublease, or assignment request transfer. Permitted subtenants or assignees shall be deemed withheld. Upon any request to assign or sublet, Tenant will pay become liable directly to Landlord the sum equal to for all obligations of Landlord’s costsTenant hereunder, including reasonable attorney’s feeswithout, incurred in investigating and considering any proposed or purported assignment or sublease however, relieving Tenant of any of the Premises, regardless of whether Landlord’s consent shall ultimately granted or withheld thereforits liability hereunder. The consent by Landlord to any particular assignment, subletting or other transfer hereunder shall not in any way be considered a consent by Landlord to any other or further No such assignment, subletting, occupancy or other transfer.
b. Without limitation, each of the following collection shall be deemed to be an assignment of this Lease requiring Landlord’s consent: (i) the transfer of a majority of the issued and outstanding capital stock of any corporate Tenant or the transfer of a majority of the membership interest of any Tenant which is a limited liability company or a transfer of the total proprietary interest of any partnership Tenant, however the same may be accomplished, whether directly or indirectly, and whether in a single transaction or in a series of related or unrelated transactions, or (ii) an increase in the number of issued and/or outstanding shares of the capital stock of any corporate Tenant and/or the creation of one or more additional classes of capital stock of any corporate Tenant, however accomplished and whether in a single transaction or a series of related or unrelated transactions, with the result that at least 51% of the beneficial interest and record ownership in and to such Tenant shall no longer be held by the beneficial and record owners of the capital stock of such corporate Tenant as of the date hereof, or the date on which such corporation shall become Tenant hereunder (whichever is later). Notwithstanding the foregoing or anything to the contrary contained herein, the sale or transfer of a majority interest in Tenant or any controlling person of Tenant shall be deemed to be a permitted transfer of this Lease (“Permitted Transfer”), if such sale or transfer: (i) is to any affiliate of (meaning, an entity controlling, controlled by or under common control with) Tenant; (ii) results in Tenant’s ultimate controlling person as of the Commencement Date no longer being the controlling person of Tenant; (iii) if Tenant’s shares are registered under the Securities Exchange Act of 1934 and traded on any nationally-recognized stock exchange or “over the counter” market; (iv) is made between and amongst the existing stockholders, partners or members of Tenant and their respective family members; or (v) results from the death of a stockholder, partner or member of Tenant; or (vi) is made by devise, bequest, gift, inheritance, intestacy or estate planning purposes of a stockholder, partner or member of Tenant; or (vii) involves the sale of shares in connection with “going public” or an initial public offering. Landlord’s consent shall not be required for any such Permitted Transfer of this Lease, provided that Tenant shall give written notice of any such Permitted Transfer (together with reasonable details describing the nature of the Permitted Transfer) promptly following the occurrence of such Permitted Transfer.
c. Notwithstanding any assignment or transfer of this Lease, and notwithstanding the acceptance of Rent by Landlord from an the assignee, transfereetenant or occupant, as Tenant, or any other party, except as otherwise agreed by Landlord in writing, Tenant shall remain fully liable for the payment of Rent and for the performance and observance of all other obligations of this Lease on the part of Tenant to be performed or observed. Tenant’s liability shall be joint and several with any immediate and remote successors in interest of Tenant, and such joint and several liability in respect of Tenant’s obligations under this Lease shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
d. Upon the occurrence of an Event of Default, if the Premises or any part thereof is then assigned or sublet, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance by Tenant of Tenant’s obligations under this Lease. Any assignment or sublease consented to by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord’s consent to any subsequent assignment or sublease.
e. Any purported sale, assignment, mortgage, subletting or other transfer of this Lease or any interest herein which does not comply with the provisions of this Section 12 shall be void.
Appears in 1 contract
Sources: Industrial Lease Agreement (Tandy Brands Accessories Inc)